ProPublica

by Peter Elkind

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In a mountainous forest in southwest Puerto Rico, workers cleared a patch to make room for a 120-foot cellphone tower intended for use by AT&T and T-Mobile. The site, as the tower company later acknowledged, destroyed some of the nesting habitat of the Puerto Rican nightjar, a tiny endangered songbird. Fewer than 2,000 are believed to be alive today.

In the northwestern New Mexico desert, a company called Sacred Wind Communications, promising to bring broadband to remote Navajo communities, planted a cell tower near the legally protected Pictured Cliffs archaeological site, which contains thousands of centuries-old tribal rock carvings.

And in Silicon Valley, a space startup pursued plans to equip thousands of satellites to use mercury fuel in orbit, even as an Air Force official at one of the possible launch sites voiced “extreme concern” that the toxic element could rain back down to earth.

You may be surprised to learn that these potential harms fall under the jurisdiction of the Federal Communications Commission. Few people think of the FCC as an environmental cop. It’s known for regulating television and radio and overseeing the deployment of communications technology. But the agency also has a broad mandate to ensure that technology doesn’t damage the environment. The task includes everything from protecting wildlife and human health to preserving historic sites and even preventing aesthetic blight.

This role is particularly critical now, as the FCC presides over a nationwide buildout for 5G service, which will require 800,000 new “small cell” transmitters, those perched on street poles and rooftops, often near schools, apartments and homes. But even with this massive effort underway, as ProPublica previously reported, the FCC has refused to revise its radiation-exposure limits, which date back to the era of flip phones. In addition, the agency has cut back on the environmental reviews that it requires while also restricting local governments’ control over wireless sites.

And as the satellite-fuel example reflects, the FCC’s ambit extends even into space. The agency is licensing thousands of commercial satellites at a moment when the profusion of objects circling the planet is raising concerns about collisions in space, impediments to astronomy, pollution, and debris falling back to earth.

To call the FCC’s environmental approach hands-off would be an understatement. The agency operates on the honor system, delegating much of its responsibility to the industries that it regulates. It allows companies to decide for themselves whether their projects require environmental study. And if the companies break the rules, they’re expected to report their own transgression. Few do. In the rare instances in which the FCC investigates, even brazen illegality is often met with a minor fine, a scolding “admonishment” or no action at all. (The FCC declined to make officials available for interviews for this article or to respond to questions sent in writing.)

The FCC’s inaction can have dire consequences. For years, the agency refused to take action even as millions of birds died by flying into communications towers. Only after a federal appeals court castigated the agency for its “apparent misunderstanding” of its environmental obligations did the FCC take steps that addressed some, but not all, of the problem.

In most instances, the scale of damages is relatively small: a half-acre of demolished habitat, a mound of damaged Native American artifacts, an ugly tower looming over a national scenic trail. But the FCC authorizes thousands of projects each year, and the effects add up.

These days, the FCC’s laissez-faire approach is sparking resistance. Hundreds of conflicts have erupted across the country, triggered by citizens fearing risks to their health from wireless radiation, harm to their property values, damage to the environment and the destruction of treasured views. Fights are raging from rural Puerto Rico, where protesters have been arrested for blocking roads used by cell-tower-construction crews, to New York City, where a dozen community boards protested the appearance of visually jarring three-story 5G poles on neighborhood sidewalks. In New York, state officials got involved, then a local congressman. Finally, in late April, the furor grew intense enough that the FCC was forced to act; it belatedly ordered a company to halt construction — after more than a hundred poles had been built — and begin the type of reviews that are supposed to be completed before breaking ground.

A 5G tower in New York City (Amir Hamja/The New York Times/Redux)

Environmentalists are routinely infuriated by the FCC’s stance. The telecommunications industry, which is eager to avoid the costs and delays of reviews, is considerably happier. In 2014, the FCC hired its first full-time environmental lawyer, Erica Rosenberg. Her mission was an afterthought at the agency, she told ProPublica: “Everybody was set on deployment. These environmental laws just got in the way.” Rosenberg finally quit in frustration in 2021. “It was just the culture of the place,” she said. “Nobody cared.”

The FCC’s ecological role originated in the National Environmental Policy Act, passed in 1969 at a moment of fervor for protecting the earth. The law requires federal agencies to assess whether projects they’ve authorized will cause harm. The goal is to “assure for all Americans safe, healthful, productive and aesthetically and culturally pleasing surroundings.”

The law mandates an exhaustive environmental impact statement for big federal projects, such as a new dam or highway. Smaller agency actions that are judged to pose a risk of significant harm, either individually or cumulatively, require a less detailed environmental assessment. Any finding of significant impact is supposed to trigger an effort to avoid or minimize the damage.

Since the anti-regulatory era under President Ronald Reagan, the FCC has largely abandoned direct environmental oversight. Using a provision of the law that allows agencies to grant themselves “categorical exclusions” — exemptions from any review — for actions they deem risk-free, the FCC removed review requirements for the vast majority of its actions. The only FCC actions still requiring review are those that fall into one of eight categories, including construction in protected habitat or wilderness areas, building in or near historic or Native American sites, projects that would significantly alter a site’s “surface features” and towers taller than 450 feet. Aesthetic harms were dropped from routine consideration, even though NEPA required federal agencies to consider them.

Stricter rules were a “waste of time,” according to comments cited by the FCC. In the decades since, the agency has never required a single environmental impact statement.

The FCC’s blanket exemption for its actions went unchallenged by a White House office, called the Council on Environmental Quality, that was set up to review agency NEPA rules. Dinah Bear, who joined the council under Reagan and served as general counsel there for 23 years, told ProPublica that “never should have happened. … It’s completely abysmal.”

By the time Republican Michael Powell took office as FCC chairman in 2001, the agency had yet to fine a single company for violating environmental rules. (At the FCC, he told ProPublica, environmental regulation is “chronically unattended to.”) Powell vowed to get “serious” about enforcement, telling a congressional committee, “When you cheat, I’m going to hurt you and hurt you hard.”

Powell took aim at a major obstacle to punishing violators, urging Congress to extend the FCC’s unusually short one-year statute of limitations for prosecuting misconduct, which starts running from the date of an alleged offense, not when the violation is discovered. Congress refused; the rule remains in place today. Powell, who now heads NCTA, a Washington trade association representing the cable industry, calls the rule “ridiculous. You don’t have a real statute if the offense can hide in the woods and by the time you know about it, it’s too late.”

Under Powell, the FCC proposed its first environmental fine against a company, citing a 180-foot cell tower built without approval near five historic sites in North Dakota, including a cabin where Teddy Roosevelt lived while hunting bison. The agency promptly dropped the matter after the company fought back.

Of the technologies the FCC oversees, broadcast and cell towers have long generated the most environmental controversy. They’re mammoth eyesores. They emit wireless radiation. Their construction requires clearing the ground of trees and vegetation, pouring concrete and building fences, access roads and support structures.

Yet for decades, the FCC refused to address their most gruesome impact: dead birds. Drawn by red nighttime lights intended to warn aircraft, migrating birds were slamming into communications towers, crashing into their support wires or tumbling to the ground in exhaustion after circling the lights for hours. As far back as 1974, the agency had identified this as “a matter of concern.”

Experts would later estimate the annual toll from North American towers at around seven million birds. In one much-cited tale of carnage, a researcher reported in 1996 that a 1,000-foot TV tower in Eau Claire, Wisconsin, had claimed more than 12,000 birds on a single stormy night.

“We don’t have the resources to investigate or monitor sites,” FCC attorney Ava Berland said at a 1999 workshop convened to discuss the bird issue. “What the FCC does is delegate our environmental responsibilities to our licensees and our applicants.” Consideration of bird mortality, she noted, wasn’t required.

The FCC resisted pleas to require environmental assessments of new towers as industry groups insisted that the bird-mortality estimates were grossly overstated. (“Not one member has witnessed more than a few dead birds at one time,” wrote the National Association of Tower Erectors.) In 2008, following a lawsuit by the American Bird Conservancy, a U.S. Court of Appeals panel scolded the agency’s “refusal to take action,” noting that the environmental law required agencies to assess the risks of their actions up front, “rather than wait until it is too late.” It ordered the FCC to examine the problem.

As the agency slowly moved to do so, Joelle Gehring, then a biologist at Michigan State University, published a study suggesting that switching from steadily burning to flashing lights could cut bird mortality by as much as 70%. In January 2013, she joined the FCC as its first staff biologist, focused on reducing the toll.

In December 2015, the agency, with the FAA’s concurrence, finally approved a requirement for all new towers over 150 feet to use flashing lights. But the FCC rejected pleas to mandate that the tens of thousands of existing towers be retrofitted. Gehring quietly launched a personal persuasion campaign, emailing tower operators individually with a plea to voluntarily make the shift. Just a third of the tallest towers, the ones most lethal to birds, have been switched over to date.

Erica Rosenberg was shocked by the FCC’s approach to environmental oversight when she arrived at the agency in 2014. Then 53, Rosenberg had spent most of her career doing environmental work, with stints at the EPA, on the staff of congressional committees, as a consultant for nonprofits and as director of a public policy program at Arizona State University.

Part of her new job involved reviewing submissions involving broadcast and cell towers. Most could be built without any notice to the FCC. Environmental assessments were required only when companies volunteered that their project would be built on a sensitive site, one that fell into any of the eight categories on the FCC checklist. Projects near historic or Native American sites also required prior reviews by state and tribal officials to avoid or minimize any “adverse impacts.”

But as Rosenberg and Gehring, the FCC’s biologist, reviewed the reports, which were supposed to be submitted for FCC approval before construction started, they sometimes discovered photos revealing that the tower had already been built or trees and vegetation removed in preparation for building. It happened frequently enough that they even coined a term for it: “premature construction.”

Such rule-breaking was rarely penalized. Companies were simply instructed to perform their own after-the-fact reviews; unless the companies confessed that they expected to cause harm, they were granted permission to build their tower.

In one rare instance in which a tower was blocked, it happened only because of the FCC’s inaction — and only after the tower’s developer had already damaged a sensitive site. In that episode in Puerto Rico, a developer had cleared scarce habitat of the endangered nightjar in 2014 before completing any environmental review. An uproar ensued, including a hearing in Puerto Rico’s Senate. In 2017, FCC officials finally drafted an order denying the developer the usual no-impact finding, citing the habitat destruction. But the denial was never issued, leaving the project on terminal hold. Even in this case, Rosenberg said, the FCC simply didn’t want to set a precedent of formally rejecting a tower approval.

Much has escaped the FCC’s notice. In 2020, Alabama’s historic preservation office alerted the FCC about a 160-foot TV tower in downtown Montgomery, which had already been built and was operating within blocks of the state Capitol and the Selma to Montgomery civil rights trail, in violation of requirements to assess harm (including aesthetic impact) to any national historic site within a half-mile. Because the structure had been built more than a year earlier, the company was immune from any enforcement action.

Self-reporting is rare, according to FCC officials speaking on condition of anonymity. As one put it, “It’s a game that gets played. A very small percentage of actual violations come to our attention.” Industry executives seemed to confirm that indirectly in a 2017 Government Accountability Office report on FCC enforcement (which addressed all forms of agency enforcement, not just environmental). Nine stakeholders offered the seemingly improbable explanation that they had “lost the incentive to self-report potential violations” because they felt they’d be treated too harshly.

There was little evidence of harsh consequences in that same GAO report: Just 10% of FCC enforcement cases between 2014 and 2016 resulted in a monetary penalty, while 40% ended with a warning and the rest resulted in no action. In a 2018 email, the agency’s federal preservation officer commented, “Industry treats our environmental rules like a joke.”

A year into her time at the FCC, Rosenberg started keeping a color-coded enforcement cheat sheet listing the status of apparent violations crossing her desk, which was then happening at a pace of about one a week. Among them was the case of Sacred Wind Communications, the New Mexico company that had built a 199-foot cellphone tower without undergoing any cultural review near a site containing Native American rock carvings. (In an interview with ProPublica, Sacred Wind co-founder John Badal blamed the violations on an outside consultant and the company’s failure to properly oversee him.)

Frustrated to see that the FCC’s enforcement team wasn’t pursuing many of these cases, Rosenberg began promoting the idea of sending violators public “admonishment letters” to deter future violations. After months of internal debate, a half-dozen letters finally went out in June 2016. But the agency declined to issue a press release publicly shaming the offenders, and it abandoned the effort months later.

The arrival of the 5G era stirred the FCC to make things even easier for the telecom industry. In September 2016, five senior agency officials met with 20 representatives from wireless and cell tower companies, including AT&T, Verizon and T-Mobile, who were eager to press their agenda. Jon Wilkins, chief of the FCC’s wireless telecommunications bureau, began by stating that “there is bipartisan support among the Commissioners for doing all that they can to help the industry with infrastructure deployment,” according to a summary of the session obtained through a public records request.

The industry delegation laid out a wish list of changes aimed at making the 5G rollout cheaper and faster. After Trump appointees assumed majority control of the agency in 2017, the FCC would seek to give the industry virtually everything it wanted. The agency passed new rules limiting what local governments could charge for access to utility poles and restricting the aesthetic requirements they could put in place. In 2018, with one commissioner blaming “outdated NEPA procedures” for slowing 5G deployment, the FCC exempted most small cell sites from environmental, historic-preservation and tribal reviews. In 2019, the commission shut down reconsideration of whether its wireless-radiation limits adequately protect people and the environment.

Federal appeals court challenges overturned most of these actions. Citing the vast scale of the 5G deployment, one court rejected the FCC’s claim that deregulating small cell sites would have “little to no environmental footprint.” It wrote that the FCC had “dismissed the benefits of historic-preservation and environmental review in a two-sentence paragraph.” A second appeals court later ordered the FCC to revisit the adequacy of its wireless-radiation safeguards, excoriating the agency for its “cursory analysis” of human health and environmental risks.

The FCC doesn’t release the totals, but, according to current and former agency employees, companies overseen by the FCC now submit just a few dozen environmental assessments a year, down from several hundred in 2016.

The FCC’s biggest environmental penalty ever — $10 million imposed on Sprint Corp. — stemmed from an investigation prompted not by the FCC, but by a wireless industry website called Event Driven. In May 2017, it published an internal Sprint memo detailing a “trial” aimed at speeding small cell deployment. The memo authorized Mobilitie, a Sprint infrastructure contractor, to start construction on scores of sites “without fully completing regulatory compliance.” The FCC’s consent decree in the Sprint case, made public in April 2018, noted that ignoring review requirements displayed “contempt” for regulatory authority. A spokesperson for T-Mobile, which purchased Sprint in 2020, said the violations occurred “long before” T-Mobile acquired it and “Sprint took steps to address their procedures at the time.” Mobilitie, which paid $1.6 million in a separate consent decree, said the episode involved “less than 1%” of the small cell sites it has constructed and that the company has subsequently developed “a robust compliance program.”

The latest environmental threat that falls under the FCC’s jurisdiction is in the heavens. Because the agency has broad authority over communications, it also licenses commercial satellites. And under the FCC’s watch, space is rapidly becoming a far more crowded place. Five years ago, there were fewer than two thousand satellites in orbit. Last December, the FCC approved the deployment of 7,500 satellites by a single company, Elon Musk’s SpaceX, that is building an extraterrestrial broadband network called Starlink. By 2030, experts project that as many as 60,000 satellites will be orbiting the Earth. In January the FCC approved the creation of a new Space Bureau to “better support the needs of the growing satellite industry.”

The FCC has approved Musk’s space armada, and many other satellite constellations, without requiring an environmental assessment, on the premise that, even cumulatively, they present no serious risk. (Musk has also argued that NEPA rules don’t apply to space.)

The agency has rejected fears from multiple quarters that tens of thousands of satellites pose worrisome threats. These include toxic emissions from rocket fuels that could pollute the earth, deplete the ozone layer and worsen global warming; increased radio congestion and space traffic that could destroy other satellites and impede critical astronomy used for weather tracking, national security and science; and a growing threat of human casualties and property damage from falling bits of satellite debris. The GAO inventoried the concerns in a September 2022 report.

For more than a year, the FCC did nothing to stop a more imminent environmental threat that emerged in 2018. It involved a Silicon Valley startup called Apollo Fusion, which was developing a low-cost satellite thruster system that uses a secret, proprietary fuel: liquid mercury. Mercury has big advantages as a fuel, but it’s also a toxic heavy metal that causes an array of harms to humans and the environment. NASA discarded it as a fuel option decades earlier. Ten years ago, the U.S. was among more than 140 countries that signed a United Nations treaty aimed at cutting global mercury emissions. But the restrictions didn’t apply to space.

Apollo was engaging in discussions with multiple big companies interested in purchasing its mercury-fueled thruster for their satellites. Its website claimed the company had a signed contract with at least one customer, with plans for a trial launch by the end of 2018.

That November, Public Employees for Environmental Responsibility, a nonprofit that had been tipped off by a whistleblower, revealed Apollo’s plans, warning that they could create an “eco-catastrophe.” The group accused the FCC of abdicating its responsibility to protect the public and petitioned the agency to halt the use of mercury. Two experts voiced concern in a Bloomberg Businessweek article that much of the toxic mercury emitted in space would descend back to earth.

At least two companies in 2019 sought FCC approval to launch satellites using Apollo’s mercury-fueled thrusters, FCC documents show. One later withdrew its request. The second, Astro Digital, applied in April for an experimental satellite license.

At what was then known as Vandenberg Air Force Base, a California site for the planned launches, an environmental reviewer in 2019 voiced “extreme concern” about flight “anomalies” that could allow mercury “to enter the terrestrial or ocean environment,” according to documents obtained from a public records request.

In August, Astro Digital and Apollo executives insisted to FCC officials that the mercury they’d release in space would remain there and cause no harm. They pressed to move forward with the planned launch.

In mid-September, the FCC finally ordered Astro Digital to submit an environmental assessment covering Apollo’s thruster system. Astro Digital agreed to comply, but asked the FCC to reconsider whether it had the authority to order such an assessment, noting that it was “not aware that the FCC has ever requested such information from other satellite operators.”

The FCC never responded, either to grant Astro Digital’s request or to deny it, according to Apollo co-founder Mike Cassidy. “We spent a year and a half waiting,” he said. (Cassidy defended his company’s fuel while acknowledging that “you obviously have to be really careful with mercury from an environmental perspective.”) Astro Digital eventually withdrew its application and Apollo switched to another propellant.

In March 2022, a United Nations conference in Indonesia did what the FCC wouldn’t: It banned the use of mercury to propel spacecraft.

Doris Burke contributed research.

by Moe Clark for ProPublica

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Colorado’s halfway houses will get an independent financial audit for the first time in 20 years, after a ProPublica investigation found a lack of oversight contributes to a system where more people end up incarcerated than rehabilitated.

A new state law directs Colorado’s Division of Criminal Justice to hire a third-party auditor to evaluate the finances of halfway houses every five years, including the costs imposed on residents of the facilities. The findings of the first audits will be presented to lawmakers by July 1, 2025.

“The goal is to make sure [halfway house programs] are working the way they were intended and to evaluate if they have the funds to meet those expectations,” state Rep. Emily Sirota, a Denver Democrat who co-sponsored the bill, told ProPublica. “We need the necessary data to assess that.”

There are three ways people typically arrive in Colorado’s halfway houses: Some are sentenced by a judge to community corrections in lieu of jail or prison; others are finishing a prison sentence; and the rest are ordered to complete halfway house programs as a condition of parole.

This fiscal year, lawmakers allocated $87.7 million — nearly 16% of the state’s public safety budget — to the state’s 26 halfway houses. That money is funneled to local community corrections boards or governments that contract with either community or private operators to run the facilities.

A majority of these 26 halfway houses are owned by companies specializing in detention and community-based supervision. Three firms operate 15 of the facilities.

The new law follows a yearlong ProPublica investigation that found the facilities often imposed punitive policies on residents, while lacking adequate employment training and effective drug treatment programs and passing along costs that sank residents into debt. One barrier to reform, the investigation found, was a lack of transparency for lawmakers to gauge their effectiveness.

The system’s failures are costly as only 35% of people successfully complete a program and stay out of the criminal justice system for at least two years, according to state data from 2009 to 2021. The result is Coloradans are billed twice: first to fund residents’ time in halfway houses and again when they end up behind bars.

The last independent audits of the system occurred in 2001 and 2004 and were done by the Office of the State Auditor, an independent agency within the Colorado legislative branch. Those audits detailed a long list of concerns, including halfway house operators’ “low levels of compliance” with state standards and little enforcement of those standards by state or local regulators.

While the Office of Community Corrections oversees the system, 22 community corrections boards also regulate what happens at individual facilities. ProPublica found that many boards haven’t audited the facilities they oversee in five years, or ever, meaning operators make millions of dollars from state contracts with minimal oversight.

“Few boards actually provide any type of systematic program oversight,” auditors wrote.

In addition to the audits required by the new law, the Division of Criminal Justice will expand the scope of its internal audits — including access to nutritional meals, grievance policies, how early release is calculated and how facilities handle client property.

Tajuddin Ashaheed, a case manager at the Second Chance Center, an Aurora-based reentry nonprofit, said requiring financial transparency of halfway house operators is long overdue.

Facilities “operated for a long time in impunity,” said Ashaheed, who spent 10 years in prison and now serves on the state’s Commission on Criminal and Juvenile Justice. “To have something, a program like community corrections, running with no real oversight, that’s absurd,” he said. “Twenty years? That’s ridiculous.”

How Much Do Halfway House Programs Cost to Run?

The question of whether Colorado’s halfway house system is appropriately funded has been discussed by state lawmakers for at least the last two decades.

The Division of Criminal Justice, as well as legislative staff tasked with evaluating budgetary proposals, have struggled to calculate the cost of community corrections programs because many are run by private entities that aren’t required to report their finances despite receiving millions in taxpayer funding. Most of what’s known about their finances comes from self-reported data that is difficult to verify.

The audits mandated by the new law could help answer the question.

“If it turns out that the amount of funding isn’t adequate to provide the level of services that we are expecting or hoping for, then that will provide us information,” said Katie Ruske, the manager of the Office of Community Corrections. “We don’t really know what we’re gonna learn or find out.”

Justin Brakke, a nonpartisan senior legislative budget and policy analyst at the Colorado State Capitol, proposed the financial audits to lawmakers during a December briefing. A bipartisan group of four lawmakers on the Joint Budget Committee sponsored the bill.

State Rep. Shannon Bird, the committee’s vice chair and a Democrat from Westminster, cited the need for greater transparency and accountability during a follow-up hearing, referencing ProPublica’s reporting on an overdose death at a Colorado Springs halfway house. Family members had called the facility pleading with staff to check on their loved one, but he was found dead the following day. The overdose death was the third to occur in an eight-month span at the facility run by ComCor Inc. and came after a string of limited-scope state audits that identified serious issues that went unresolved.

“That’s just one story. But it is sort of elevating this concern about how safe people are and the quality of the service that the state is getting,” Bird said during the December hearing.

Mark Wester, the executive director of ComCor Inc., said in response to ProPublica’s reporting on the death that staff followed all protocols and that an investigation by El Paso County employees found no deficiencies in the facility’s response to the incident. Wester denied ProPublica’s request to review the county’s investigation, and in response to a public records request the county said it found no documentation of such an investigation.

Since then, at least one other person has died of an overdose at a facility run by ComCor Inc. — which recently rebranded as Embrave — according to a coroner report obtained by ProPublica.

“Community Corrections including Comcor Inc is dealing with the increased threat of overdoses driven by fentanyl and other substances,” Wester said in a written statement. “In response to this trend, Comcor became a certified Harm Reduction Facility through the Colorado Department of Public Health and Environment.”

Pete Carey, the executive director of El Paso County’s Justice Services Department, said in a written statement that the county is strengthening its oversight of community corrections facilities, including ComCor Inc. It helped create the 4th Judicial District Community Corrections Authority, which will oversee halfway house contracts instead of the local community corrections board, and has hired a compliance specialist.

“El Paso County is dedicated to ensuring that community corrections vendors comply with our standards and expectation for safety and security,” he wrote.

A New State Task Force Focused on Reentry

Separately, a new state task force will explore how to improve reentry services, including community corrections. The task force, which was convened by the Colorado Commission on Criminal and Juvenile Justice, a policy group within the state’s Department of Public Safety, had its first meeting on April 11.

Ashaheed, who will serve on the task force, said he hopes the group focuses on removing financial obstacles and assisting with career development, instead of low-paying jobs. But, he said, he is so far disappointed by the committee’s lack of racial and ethnic diversity — as well as how few of its members have experienced reentering society after incarceration.

Recent changes, such as the Denver City Council’s decision to cut ties with for-profit halfway house operators and replace them with more evidence-based programs, give him some hope, he said.

He wants the task force to build on “some of the positive changes that have happened,” Ashaheed said. “It’s still yet to be determined how well we’re actually going to do.”

by Topher Sanders and Dan Schwartz

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Within 48 hours of an investigation about children having to crawl under parked trains to get to school in an Indiana suburb, residents packed a public meeting to demand solutions, the Federal Railroad Administration issued a safety advisory, a bipartisan group of Indiana lawmakers sent a letter to the U.S. Department of Transportation pleading for change and Norfolk Southern’s CEO, Alan Shaw, got involved.

The investigation, a partnership between ProPublica and InvestigateTV, detailed the challenges communities face when they are besieged by trains that can block railroad crossings for hours or even days. The piece featured videos and photos of children climbing over and crawling under trains operated by Norfolk Southern; the images were rebroadcast by news outlets across America and beyond. Hundreds of readers reached out to ProPublica about their own experiences with blocked crossings, caused by trains from various companies.

Officials in the working-class commuter city of Hammond previously told ProPublica that Norfolk Southern had not been helpful in the years the company’s trains blocked its intersections. “To them, I am nobody,” Mayor Thomas McDermott Jr. had said. But the day after the story was published, he got a call from Shaw, who told him he was shocked by the situation in Hammond and wanted to help fix it. “I don’t want to divulge too much about what we talked about, but if it works out the way I hope it does, it will be spectacular,” the mayor said.

A company spokesperson previously attributed the blocked crossings problem to the city’s location near the busy train hub of Chicago and to the fact that it sits between two major rail intersections that must remain open; moving a train forward or backward to clear Hammond streets would cut off the paths for other trains, which could belong to other companies. While McDermott declined to provide details about the 15-minute Thursday call, he said he hopes to have good news over the next month or two. “I’ve been screaming from the rooftops for a long time,” he said, “and it took that article to get people’s attention.”

On the same day last week, the railroad administration issued a safety advisory on blocked crossings, its second in a month coming in the immediate wake of ProPublica’s investigative stories on the rails.

After an investigation into the dangers of long trains on April 3, the agency issued an advisory on April 6 cautioning that railroads must “exercise due diligence” when building trains to ensure, among other considerations, that their weight is evenly distributed.

ProPublica’s story featured a 2017 derailment in Hyndman, Pennsylvania, that nearly blew up the community and forced an evacuation. The train was assembled with empty cars up front and the bulk of its weight bearing down on the rest as it made a steep, winding descent into the community. The force knocked a rail car off the tracks on a curve and caused more than 30 others to derail.

“FRA has noticed a rising trend in recent incidents,” the agency stated in its advisory, “where train build and makeup have been identified as a potential cause or contributing factor.” The agency described six “significant incidents” in the past two years; three involved the release of hazardous materials. The agency listed six recommendations for companies to follow, including updating their train makeup policies, procedures and guidelines; making sure crews are appropriately trained; establishing a system to monitor and assess train makeup, with a focus on identifying and addressing risks; and enhancing investigation procedures to address train makeup as a potential contribution to the cause of an incident.

“Personnel should be encouraged and empowered to adhere to train makeup policies, procedures, and guidelines, even if it delays a train,” the agency said in its recommendations. Federal investigators said that CSX, which ran the train that derailed in Hyndman, allowed its workers to ignore best practices for assembling trains if they were pressed for time. The company said it has since reformed its train makeup policy.

After ProPublica’s April 26 investigation on blocked railroad crossings in collaboration with InvestigateTV, the railroad administration issued another safety advisory on April 27, doubling down on its warnings about long trains and raising the problem highlighted by the story. “Blocked crossings near schools are especially critical safety hazards due to the potential for children to cut through the idling trains,” the advisory said.

Children climb over a parked freight train to reach their school in Hammond. (Jamie Kelter Davis for ProPublica)

The agency asked railroads to identify crossings that could be affected by longer trains and to work with communities and first responders to prevent, or at least minimize, the impacts. “These actions could include: identifying alternative routes for critical emergency response needs, establishing and maintaining clear lines of communication between the railroad and local authorities, or developing protocols for resolving concerns surrounding emergency response and blocked crossings,” the advisory said.

A railroad administration spokesperson said the agency had been working on the April 27 safety advisory prior to ProPublica’s April 3 story on long trains. ProPublica began asking the agency questions about the impact of long trains in May 2022.

The advisories are significant for a number of reasons, said Grady Cothen, a former railroad administration attorney who has written a widely cited white paper on the challenges of operating longer trains. While they cannot compel companies into action, they serve as a paper trail that a safety officer at a railroad can point to when advocating that it operate more carefully, he said. They also connect the dots in a way that raises public awareness and validates community concerns.

Federal and state officials have expressed a strong desire for the railroad administration to have more power. On Thursday, 10 Indiana lawmakers, including eight Democrats and two Republicans, sent a letter urging U.S. Department of Transportation Secretary Pete Buttigieg to tell the railroad companies that children’s lives should matter more than profits.

“Our children should not have to risk their lives just to make it to school in the morning,” the letter said. “Our educators already have a full plate — now we expect them to stand watch, crossing their fingers that their students will make it home alive.”

The lawmakers want the railroad administration to have the authority to compel rail companies to keep crossings clear. That power would come from Congress. Currently, the agency can’t so much as fine a railroad for blocking a crossing, let alone make it move the train. U.S. Rep. Sylvia Garcia, D-Texas, introduced a bill in March that would prohibit companies from blocking crossings for more than 10 minutes and allow the agency to fine repeat offenders. The bill has not gotten bipartisan traction.

Two additional rail safety bills, both bipartisan, are also working their way through the House of Representatives. The bills call for measures such as increasing fines for safety violations, requiring companies to provide advanced notice to first responders for trains carrying hazardous materials and reducing blocked crossings. The top democrat on the House Transportation and Infrastructure Committee told ProPublica he supports both measures.

“Communities in my district and across the country have had first responders unable to respond to emergencies in time because increasingly long freight trains are blocking roadway access,” Rep. Rick Larsen, D-Wash., said in a statement. “We need a rail safety hearing and then a prompt vote on the bipartisan rail safety bills introduced in the House and the Senate.”

Wednesday’s meeting in Hammond was hosted by the Indiana Department of Transportation and focused on a proposed overpass, which would alleviate traffic challenges when crossings are blocked and ease access for first responders, who are regularly held up by trains. It will not help many of the children who walk to and from school, because its entrance would force pedestrians to walk at least a mile out of their way to reach it.

Just hours before the meeting that afternoon, children climbed over a 1.5-mile-long train that was blocking their paths home. Kenny Edwards, the Indiana legislative director for the International Association of Sheet Metal, Air, Rail and Transportation Workers, or SMART, told the crowd of about 150 people that he watched the scene unfold. “This doesn’t have to continue,” he said, generating applause as he called for railroad companies to reduce the lengths of their trains. The ones that park in Hammond can block five or six intersections at once.

Among those gathered were Carlotta Blake-King, a school board member who called the images she saw “horrendous”; middle school teacher Teresa Maciel, who wondered why the road had to move instead of the tracks; and John Ratajczak, a longtime resident who once had to hop the trains as a kid. He said the overpass is not the fix the students need. “Where they’re putting it,” he said, “it’s not going to help.”

What didn’t get discussed at Wednesday’s meeting is the possibility of an additional overpass in the neighborhood just for pedestrians and located in the area where children climb the trains. The city estimates it would cost somewhere between $3 million to $5 million to build and would require Hammond to acquire private property using eminent domain.

The U.S. Department of Transportation told ProPublica that a pedestrian-only project would be eligible for the department’s new $3 billion grant program aimed at alleviating blocked crossings. The office said Hammond may also be eligible for the Safe Streets and Roads for All grant.

“What’s especially great about [that grant] is that it’s not just funding projects that are ready to go, but also helps communities put pen to paper on planning,” a department spokesperson said in an email. “So even if they don’t have a solution in mind, they can get funding to help them figure out what the solution could be to an existing safety issue.”

McDermott said his administration will look into the grants. He said he once considered a pedestrian overpass a “pipe dream” because of the city’s limited budget, but he said he feels more hopeful than ever.

“I think at the end of all this,” he said, “all these factors working together are going to result in a safer passage for kids to get to school.”

Do Blocked Railroad Crossings Endanger Your Community? Tell Us More.

Ruth Baron contributed research.

by Lauren Gill and Daniel Moritz-Rabson

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was produced in partnership with Type Investigations with support from the Puffin Foundation.

In 2017, as lawyers for prisoners in Ohio sought to spare their clients from lethal injection, they challenged one of the state’s key witnesses: Daniel Buffington.

As he had done elsewhere, the Florida-based pharmacist had submitted written testimony saying that prisoners would not feel pain from the three-drug cocktail administered by executioners. But the lawyers for the men on death row argued that Buffington was unqualified to testify in an upcoming hearing, noting that he had not administered general anesthesia or conducted research on midazolam, the key sedative in the execution protocol.

U.S. Magistrate Judge Michael Merz denied the motion to bar Buffington’s testimony. And when prisoners’ lawyers challenged the pharmacist again in court, the judge stood his ground.

“He’s certainly better able to understand and explain induction of anesthesia than I am,” the judge said of Buffington. “I have no experience of induction of anesthesia except having had anesthesia induced on my own body and watching it with my wife and my son, and that’s far less than this witness has.”

Merz admitted Buffington as an expert witness in that proceeding and considered his testimony.

Legal experts say such exchanges illustrate a critical weakness in the judicial system: While the law relies in part on lawyers to scrutinize experts, judges must also evaluate a host of technical issues for themselves, weighing questions like whether a forensic technique is legitimate science or whether a particular drug will anesthetize a prisoner. And some experts say jurists are not always well equipped to do so.

“It’s very, very hard,” Patrick Schiltz, the chief U.S. district judge for the District Court of Minnesota, said in a telephone interview. Schiltz is also the chair of the advisory committee on evidence rules for the Judicial Conference of the United States, the governing body of the federal court system.

Before 1993, judges had to decide only if the testimony of an expert was consistent with generally accepted methodologies in the field. That year, though, the Supreme Court issued a landmark decision in the case Daubert v. Merrell Dow Pharmaceuticals Inc., setting a new standard for federal jurists evaluating scientific testimony. The ruling instructed federal judges to rigorously scrutinize the science directly, considering factors like whether the expert’s theory had undergone peer review. Six years later, in a 1999 ruling, the court strengthened judges’ gatekeeping power by applying the standard to all expert witnesses, not just those giving scientific testimony.

Together, these mandates presented a significant challenge for judges, particularly in the arena of capital punishment and lethal injection, where debates often involve complex and evolving science.

“Sometimes we have really, really hard technical issues,” Schiltz said. “And it is a criticism of Daubert that it asks the judges to do something that judges aren’t particularly well suited to do.”

Jules Epstein, a professor at Temple University’s law school, was more blunt. “A courtroom is a really lousy place to decide science,” he said.

Complicating matters is the fact that a significant portion of the judiciary has inconsistently applied the rules for admitting expert witnesses. Federal judges are supposed to act as gatekeepers that consider whether there’s more than a 50% chance that the expert’s opinion is reliable, a standard known as the preponderance of the evidence. But one recent study of more than 1,000 federal court opinions determining the admissibility of expert testimony in 2020 found that in 13% of cases, the standard for admissibility used was less stringent than the law demands, and judges actually presumed that the expert’s testimony would be admissible.

In bench trials, which take place in front of a judge instead of a jury, judges also can allow experts to testify, then decide later how much weight to give their testimony. This has happened at least twice in method of execution cases where states have hired Buffington.

A judge’s initial decision on an expert witness can have far-reaching consequences. Legal experts told ProPublica and Type Investigations that jurists look to what other judges decided in past cases when they are weighing an expert’s qualifications. “Being admitted once as an expert essentially guarantees acceptance going forward,” Chris Fabricant, the director of strategic litigation at the Innocence Project, wrote in an email.

As ProPublica and Type have reported, seven states have hired Buffington to vouch for their execution protocols since 2015, when he first appeared in a lethal injection case. Judges have allowed him to testify in nearly every instance, with the exception of the Ohio case, where Merz later excluded him. Even then, it was not due to his qualifications but because he did not list his prior expert testimony in a way that complied with federal rules. (Merz declined to comment on the case, saying the court’s practice is not to speak about past decisions. Buffington has said in court that opposing counsel took issue with the formatting of his disclosure form. “That information wasn’t conveyed in time to reformat the form,” Buffington testified in Arkansas in 2019. “We were working on that, but the judge made the decision that there was a time threshold and precluded on that.”)

Buffington declined to be interviewed about the findings of the ProPublica-Type investigation, but a spokesperson for the pharmacist said Buffington has significant training and professional expertise in the areas of his testimony, including pharmacology and toxicology, and has held positions over the years in various medical organizations, including the American Medical Association and the American Pharmacists Association. “Dr. Buffington’s pharmacology training and professional experience make him well qualified to provide expert opinions on medicines and their effects in a wide range of areas,” the spokesperson wrote. “The core training, curriculum and clinical practice experience within the Doctor of Pharmacy degree and practice of pharmacy is centered on the domain of pharmacology.”

The spokesperson also dismissed the criticism by prisoners’ experts. Disagreement between expert witnesses, the spokesperson said, “is a hallmark of the American justice system. It is expected and utterly unremarkable that for every case in which Dr. Buffington served as an expert witness, the opposing side will disagree with his testimony.”

In cases unrelated to lethal injection, however, some judges have also challenged Buffington’s credentials, criticizing him for crafting what they considered to be thinly researched opinions and for attempting to testify beyond the scope of his expertise.

In 2018, for instance, a judge found him unqualified to testify as an expert in a case brought by the widow of a veteran accusing the Department of Veterans Affairs of negligence in her husband’s death. “Dr. Buffington is not competent to testify regarding the standard of care — or breach thereof — by medical doctors, nurses, osteopathic physicians, or physician’s assistants, as these are different professions from that of a pharmacist,” wrote Judge James Randal Hall, chief U.S. District Court judge for Georgia’s Southern District. (Neither Hall’s office nor Buffington responded to requests for comment about the ruling.)

In another case, a judge scoffed at Buffington’s work, which he said lacked sufficient evidence or analysis to back up the pharmacist’s conclusions. “Buffington’s opinion is entirely without any intellectual rigor or any indicia of reliability,” wrote U.S. Magistrate Judge Mark Lane, who in 2017 excluded Buffington’s testimony in a case about regulatory compliance for a medication guide. (A spokesperson for Buffington said Buffington “testified to specific FDA guidelines” and the judge’s statement “contradicted the FDA’s established requirements.”)

The Judicial Conference has recognized a need to clarify the rules for judges. Last year, it proposed amendments to the Federal Rules of Evidence, clarifying language to underscore the responsibility that judges have to be gatekeepers of expert testimony. The amendments will go into effect in December 2023 if the Supreme Court adopts them and Congress does not reject them.

by Lauren Gill and Daniel Moritz-Rabson

This story describes executions and violent deaths.

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was produced in partnership with Type Investigations with support from the Puffin Foundation.

Last winter, Dr. Gail Van Norman sat on the witness stand in the federal courthouse in Oklahoma City, testifying as part of a trial that would determine whether Oklahoma’s lethal injection procedure was constitutional. Two weeks earlier, at the request of lawyers representing more than two dozen prisoners, Van Norman, an anesthesiologist and professor at the University of Washington, had attended the execution of a man named Gilbert Ray Postelle.

In the execution chamber, she testified, Postelle was lying face-up on a gurney with his arms stretched out beside him. Executioners injected him with midazolam, a drug that was supposed to knock him unconscious so he didn’t feel pain from two drugs that would soon paralyze him and stop his heart. It didn’t appear to work. For 2 1/2 minutes after receiving midazolam, Postelle continued to wiggle his hands and feet. His eyes remained open, blinking and looking up at the ceiling. Postelle’s breathing became increasingly strenuous and rapid. Van Norman said his trouble breathing was a result of the large dose of midazolam.

Minutes later, executioners declared Postelle unconscious and injected him with two syringes of vecuronium bromide, a drug that would paralyze him and stop him from breathing. They then flushed the IV line with saline, pushing any remaining drug into his system. That was when Van Norman saw him curl the fingers of his left hand and appear to try to make a fist. “This was not a reflex movement,” she said. “This was a conscious movement.” Officials then pumped a third drug into the IV, causing Postelle’s heart to stop.

Van Norman had reviewed documentation of three other executions that Oklahoma had carried out over the previous four months. “I conclude that they did experience extreme pain and suffering through the execution process,” she said. The feeling, she said, would be akin to suffocation. In previous testimony, other expert witnesses for the prisoners had said they would feel like fire was burning in their veins and as if they were drowning.

At issue was the use of midazolam, a sedative typically used to ease anxiety and produce drowsiness before medical procedures. In circumstances like major surgeries, the drug is paired with other medications, such as opiates, to achieve general anesthesia. But states have used midazolam alone — and at much higher doses — in executions since 2013, claiming the drug will render people insensate to pain before the administration of other lethal injection drugs. Research into how midazolam works at high doses has been limited because experimenting with such quantities on humans poses ethical problems. In executions, though, a number of prisoners have reacted like Postelle, gasping, moving or convulsing after being injected with midazolam — actions that have prompted medical professionals to raise concerns that prisoners could still feel pain. In Oklahoma, prisoners’ attorneys argued that these kinds of reactions showed that the state’s lethal injection protocol violated the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment.

Attorneys for the state, however, responded with their own medical experts. Two were anesthesiologists who have regularly worked with the drug. The third was Daniel Buffington, a Florida-based pharmacist who had become a familiar, if divisive, face in the small pool of health care professionals who regularly testify for state governments on the merits of their execution methods. Since 2015, he had testified for seven states, which collectively paid him at least $354,541 for his services.

“I conclude that they did experience extreme pain and suffering through the execution process.”

—Dr. Gail Van Norman, anesthesiologist

In Oklahoma, Buffington testified that if the state administered its lethal injection procedure properly, prisoners would not feel severe pain. He disputed the argument of prisoners’ experts that midazolam had a “ceiling effect,” meaning that at a certain point, increasing doses will not increase the drug’s sedative impact. The pharmacist said there was no evidence of such an effect.

In what had become a familiar routine for Buffington, one of the prisoners’ lawyers challenged his qualifications. Had he ever authored any peer-reviewed articles on midazolam? Not that he was aware of, he said. Had he ever prescribed the drug? He didn’t remember.

Ultimately, U.S. District Judge Stephen Friot sided with the state, saying Buffington and the other experts had convinced him that midazolam would successfully render the prisoners unable to feel pain. He cleared the way for Oklahoma to continue carrying out lethal injections. The state then scheduled 25 executions, including that of Richard Glossip, the lead plaintiff in the case. Glossip is set to die by lethal injection on May 18.

Similar scenes have played out in courtrooms across the country: Facing constitutional challenges to their lethal injection protocols, states have tapped Buffington to vouch for the ways they execute prisoners, and judges are persuaded, in part by his testimony, even as the controversy over midazolam and other lethal injection drugs has grown. But an investigation by ProPublica and Type Investigations scrutinized the assertions Buffington has made under oath and found that, for years, as he crisscrossed the country to argue that midazolam ensured a humane death, he seemed to be exaggerating or misrepresenting the scope of what he could legally do as a licensed pharmacist.

Notably, on multiple occasions Buffington has testified that he has prescribed midazolam, which legal experts said could boost his credibility with judges.

But both Florida and Georgia, the states where Buffington is licensed, do not permit pharmacists to prescribe controlled substances, which include midazolam. In response to the news organizations’ questions, a spokesperson for Buffington said “the word and process of ‘prescribing’ controlled substances” is commonly misunderstood and encompasses advising, recommending and ordering medication in collaboration with physicians — a definition that Buffington has not always used in court.

Some experts in health law disagreed with the characterization of Buffington’s spokesperson. William Allen, an associate professor of bioethics and medical law at the University of Florida, said that Buffington was “trying to stretch the definition of prescribing beyond its normal — and I would say legally appropriate — use.” To be sure, there are provisions in Florida state law that permit pharmacists to prescribe some drugs under the guidance of, or in collaboration with, a physician. But those provisions do not allow pharmacists to prescribe controlled substances, a point that Buffington noted in a 2021 presentation to Florida medical professionals.

The findings of the news organizations’ investigation raise questions about Buffington’s conduct as an expert witness and the credibility of the testimony itself, which has helped facilitate a number of executions where witnesses said prisoners appeared to be moving or struggling to breathe. They also highlight critical weaknesses in the judicial system, which relies on judges to act as gatekeepers for expert witnesses. When deciding whether to admit testimony, federal judges must determine that it is more likely than not to be reliable, but some jurists acknowledge this is a difficult duty when evaluating complex or technical science. Even when prisoners’ attorneys have raised concerns about Buffington’s qualifications or credibility, judges have often allowed him to testify.

“He’s certainly better able to understand and explain induction of anesthesia than I am,” said U.S. Magistrate Judge Michael Merz in a hearing on Ohio’s lethal injection protocol, after a lawyer for prisoners argued that Buffington was inappropriately testifying about anesthesia.

In the cases Buffington has worked on, he has emerged as one of the most strident deniers of the claim that midazolam has a ceiling effect, arguing that concerns about prisoners feeling pain are “fundamentally defective.” But unlike some of his fellow state experts, who allow for the possibility of such an effect, Buffington, by his own account, has never induced or maintained anesthesia, nor witnessed an execution. His own research has focused mostly on topics such as administrative practices and health care policy.

In vouching for the effectiveness of midazolam in lethal injections, Buffington has repeatedly cited a 2005 study. But the study’s lead author, Dr. Richard Bulach, told ProPublica and Type that his work only dealt with doses that were a fraction of what prisoners receive in executions using midazolam. “Therefore any opinion re: ‘people unable to perceive pain’ becomes theoretical,” he said via email. “Not ideal if you want to be sure that the person you are executing is ‘insensate’ or better — completely anesthetized.” A spokesperson for Buffington said the pharmacist stood by his interpretation of the study, saying it demonstrated that midazolam is capable of inducing general anesthesia. Bulach, however, disputed that characterization.

The courts greenlit four executions. In three of those, prisoners lurched, moved or gulped for air.

Buffington declined to be interviewed about the findings of this investigation but said in a statement that he had served as an expert witness on a broad range of topics over his 30-year career, testifying for the defense, for plaintiffs and for the prosecution. “Though lethal injection cases constitute less than 1% of my expert testimony work, my overriding goal has always been to provide the most accurate, well-documented information on the accepted drug protocols commonly used in the United States,” he said. “I always have — and always will — call for greater transparency in the lethal injection process so that much-needed state-by-state oversight can be provided and problematic executions are avoided.”

His spokesperson noted that Buffington has testified in more than 120 capital murder cases and “in almost every instance, he has testified on behalf of the defendant to spare him from execution.” That testimony has included statements about how medications, drugs or alcohol could have impacted a defendant’s mental state or behavior at the time of their crime. But when he has testified about lethal injection on behalf of states, he has been squarely focused on their execution protocols. After judges approved the protocols being challenged in these cases, officials used those methods to execute 34 people, accounting for 19% of all executions nationwide since 2015.

Not all of those executions have gone as smoothly as Buffington predicted they would. In 2017, for example, Buffington was one of two health care experts who testified that Arkansas’ lethal injection protocol, which included midazolam, would ensure prisoners did not experience severe pain. The courts greenlit four executions. In three of those, prisoners lurched, moved or gulped for air. Likewise, in 2019, Buffington testified in support of Alabama’s lethal injection procedure after prisoner Christopher Lee Price argued it was unconstitutional. In a filing to the U.S. Supreme Court, the Alabama attorney general cited that testimony as proof that midazolam would adequately anesthetize the prisoner. The court cleared the way for Alabama to execute Price that evening. According to witnesses, his stomach heaved and he lifted his head after midazolam started flowing into his veins. A reporter from The Montgomery Advertiser observed, “His left fist remained clenched throughout the execution.”

For more than a century, experts have helped propel the development of capital punishment. In 1889, Thomas Edison, the inventor of the lightbulb, testified on behalf of the state of New York as officials were preparing to carry out the nation’s first execution by electrocution. Lawyers for the prisoner, William Kemmler, alleged that the method violated the Eighth Amendment’s ban on cruel and unusual punishment.

Joining Edison in his approval of New York’s plan were physicians, future presidents of the American Institute of Electrical Engineers and people who had been shocked by electricity. Like prisoners’ lawyers would do with Buffington more than a century later, Kemmler’s attorney attempted to discredit one of the state’s witnesses, pointing out that he did not have a formal education in electrical engineering, according to Deborah Denno, a Fordham University law professor, who wrote about the case in her 1994 article, “Is Electrocution an Unconstitutional Method of Execution?” The lawyer also jabbed at Edison’s credibility, forcing him to admit that though he said that electrocution would not be painful, he did not know anything about the conductivity of the brain or the body.

Several lower courts ruled against Kemmler’s challenge, and his lawyers appealed to the U.S. Supreme Court, which allowed the execution to move forward. The court ruled that electrocution was “not inhuman and barbarous” but the “mere extinguishment of life.” It did not go as planned. After shocks had pulsed through his body for 17 seconds, Kemmler was still alive; when a second current was applied for 70 seconds, the smell of burning flesh filled the room. Local newspapers declared the execution a “historic bungle.”

Nevertheless, grisly executions by electric chair, hanging, gas chamber and firing squad would proceed for the better part of the next century. Then, in 1977, Oklahoma became the first state to adopt lethal injection, offering governments a sanitized approach to executions. Rather than smelling charred flesh or watching the dark spectacle of the gallows, witnesses saw something that mimicked a medical procedure. Thirty-one states would eventually adopt lethal injection.

It also created a new dilemma though, as prisoners’ attorneys once again challenged the method as unconstitutional: States needed medical and scientific experts to defend lethal injection in court, but physicians’ Hippocratic oath — which includes swearing to “do no harm” — contradicted working in favor of executing people. In 1980, the American Medical Association made its opposition formal, and it has since prohibited its members from “participating” in executions — a term that it defines broadly to include providing technical advice to executioners as well as expert testimony on the efficacy of methods. Other medical organizations, such as the American Board of Anesthesiology, would follow in the AMA’s footsteps.

Some medical professionals teamed up with the government anyway.

But in the past decade, states hit another hurdle: pharmaceutical manufacturers stopped supplying them with lethal injection drugs. In 2011, the U.S.-based Hospira announced that it would cease selling sodium thiopental, a barbiturate that was used to render prisoners unconscious when administered as the first drug in a lethal three-drug protocol. The drug was being manufactured in Italy, and the European Union, which had outlawed capital punishment, grew concerned over its use in executions. A Danish manufacturer of another execution drug, pentobarbital, followed suit later that year, prohibiting sales for executions, and the British government banned the export of the drug to the United States.

“[The prisoner] remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.”

—The Associated Press, on the first execution using midazolam

Amid the drug shortage, states turned to midazolam, a sedative that’s widely available in the U.S. The medication is typically used to help patients relax before they are administered anesthetic agents. But in executions, midazolam is used differently; officials use much higher doses of the drug — enough, they say, to knock prisoners out and prevent them from feeling pain from the subsequent lethal injection drugs.

In 2013, Florida became the first state to use midazolam in an execution, but the drug did not produce the effect that officials promised. The prisoner, a man named William Happ, “remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula,” reported The Associated Press, which was present.

Despite its apparent issues, midazolam was adopted by nine states in their lethal injection procedures, triggering a new round of legal challenges over the method of execution. Faced with lawsuits and mounting evidence that the drug didn’t work, states relied on a small pool of experts to defend the drug’s efficacy.

In 2014, Dr. Mark Dershwitz, an anesthesiologist and professor at the University of Massachusetts Chan Medical School who had served as an expert in court cases for more than 20 states, stopped testifying. His decision followed an Ohio execution in which the prisoner gasped and choked for more than 10 minutes. The entire execution lasted nearly half an hour — the state’s longest in 15 years. Dershwitz had previously vouched for the lethal injection protocol, which involved midazolam, and, according to a report in The New Republic, called it quits over concerns that the publicity surrounding the execution would lead the American Board of Anesthesiology to pull his board certification.

Dershwitz and the American Board of Anesthesiology declined to comment.

As new lethal formulations attracted a flurry of litigation, states tapped other medical experts, including some pharmacists. While the American Pharmacists Association “discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care,” its members are not bound by the Hippocratic oath or rules banning them from testifying in favor of lethal injection. But pharmacists aren’t medical doctors, and their experiences with midazolam and other controlled substances were largely limited to reading drug inserts, dispensing drugs or observing their use during procedures. “They’re not medically qualified,” said Denno, the Fordham law professor, who called states’ reliance on them “desperate.”

(Dominic Bodden, special to ProPublica)

In the early 1990s, Buffington started Clinical Pharmacology Services, a Tampa-based business that provides consulting for health care facilities, physicians and patients on medications, as well as expert witness services for court cases. Since then, retired pharmacist Paul Doering has encountered Buffington at professional events and courtrooms in Florida. The two served as expert witnesses on opposite sides of cases. And at first, Doering was impressed. Buffington, he said, was charming and confident, brimming with charisma.

Over the years, however, Doering said he was also troubled by something he noticed: Buffington seemed to overstate his experience and bend his opinions to fit his clients’ needs.

In 2011, for example, Buffington testified that he had the authority to prescribe a controlled substance “under specially collaborative practice” and that he was registered with the Drug Enforcement Administration, a requirement for prescribing or researching such drugs. That credential was relevant because he had been tapped by the defense in a capital murder case to talk about what effects various medications, including an opioid, would have had on the defendant at the time of an interview with law enforcement.

Florida prosecutor Peter Magrino challenged Buffington’s claim about prescriptive power, though, citing affidavits from the DEA. While Buffington did hold two DEA registrations at the time, neither granted him any prescriptive authority. One allowed him to study marijuana and the other allowed him to research additional controlled substances, according to the documents, which were reviewed by ProPublica and Type. Buffington pushed back, saying the registrations “involve the capacity as a clinical pharmacologist to manage and dispense and prescribe” certain controlled substances, “specifically for research purposes.” The judge quashed the debate at the time, concluding that Buffington had “given sufficient qualifications” to be accepted as an expert witness in the case. But a former DEA employee confirmed to ProPublica and Type that, as the affidavits indicated, Buffington has never had a DEA registration that would enable him to prescribe controlled substances.

Magrino was so troubled by Buffington’s testimony during the state case that he later wrote a letter to the dean of the University of Florida College of Pharmacy, where Buffington was a clinical associate professor, an unpaid role in which he supervised pharmacy students at his business. In the letter, a copy of which was obtained by the news organizations, Magrino sent a transcript for the dean to review and invited him to take “any actions you feel appropriate.”

“He was overstating his credentials, which qualified him to render some ridiculous expert opinions.”

—Florida prosecutor Peter Magrino

“Having been an Assistant State Attorney since 1983 I have had many dealings with expert witnesses and rarely contact folks the witness is associated with,” Magrino wrote, “however this is one of those occasions.” In an interview, the prosecutor said that he never heard back from the dean. (The dean did not respond to requests for comment for this story. The university said it was unable to confirm receipt of the letter, but noted that Buffington remains in the same unpaid role he had in 2011.)

“He was overstating his credentials, which qualified him to render some ridiculous expert opinions,” Magrino told ProPublica and Type. A spokesperson for Buffington did not comment on the prosecutor’s remarks but noted that Buffington did not face any disciplinary action or ramifications “if such a letter was ever sent.”

In another case, in late 2013, Buffington testified at a personal injury trial against a physician who had caused an accident after he had fallen asleep while driving. (Doering testified for the defense.) The doctor had a prescription for a sedative called temazepam, which is commonly used to treat insomnia.

When the plaintiffs’ lawyer, who had hired Buffington, asked whether someone could take temazepam and drive, Buffington responded, “No, sir. … You would never want to take this medication and get behind the wheel.” Under cross-examination, he conceded that many people do use the drug and drive cars, but that “it is strongly cautioned against, because of the risk.”

Four months later, when Buffington testified for the defense in a murder case about medications detected in the victim’s autopsy, he offered a different opinion of temazepam.

This time, when asked about a person driving a car after taking the drug, which is also known by the brand name Restoril, he stated, “It is appropriate and it is done routinely.”

At one point, Miami-Dade County assistant state attorney Gail Levine accused Buffington of providing answers to benefit the defense case without providing data to back it up. “You have come here to say the victim in this case was not impaired because that’s what you have been paid to say; isn’t that true?” she asked.

“I take great offense at that,” Buffington responded.

Doering said the disparity in Buffington’s assessments was problematic. “I can’t condone Dan Buffington swinging like a weather vane on the top of a barn,” he said.

A spokesperson for Buffington said the “nature of these two cases was clinically very different and it is misleading to liken the two fact patterns.” The testimony in both cases was accurate and not contradictory, the spokesperson said.

Medical professionals in Florida also took note of Buffington.

In 2013, the pharmacist was called to testify on behalf of a defendant accused of beating a man to death. The medical examiner’s report stated that the victim’s cause of death was blunt trauma, which split the victim’s spleen and caused bleeding in his abdomen, broken ribs and head injuries.

“I can’t condone Dan Buffington swinging like a weather vane on the top of a barn.”

—Retired pharmacist Paul Doering

Buffington, however, had a different opinion. The victim was a long-term cocaine user and laboratory tests had found drugs, including cocaine, in his system. Buffington said the victim’s cocaine use was “equally plausible” as a reason for his death.

Dr. Jon Thogmartin, the medical examiner in the case and a board-certified pathologist, testified that it made no sense to suggest that the victim could have died from cocaine use “right around the time of” a brutal beating. “That’s just not how you practice forensic pathology,” he said in court. In an interview, Thogmartin said that he felt the court should not have allowed Buffington to testify about cause of death and that he thought “most experts should know the limits of their expertise.”

The judge who presided over the trial has since retired, and the Florida court where the case was heard did not respond to a request for comment.

A spokesperson for Buffington said that disagreement between expert witnesses is “a hallmark of the American justice system” and called it “unremarkable” that the opposing side disagreed with Buffington’s testimony. According to the spokesperson, Buffington never said that blunt trauma didn’t cause the victim’s death and he stands by his testimony.

For a few years, Roswell Lee Evans, then dean of the Harrison School (now College) of Pharmacy at Auburn University, was a key expert for some states that were defending their execution protocols, testifying that high doses of midazolam would prevent an individual from feeling pain and would induce unconsciousness. But by 2015, that opinion was being called into question. The previous year, prisoners in two states showed what some medical professionals said were signs of consciousness during their executions. In Ohio, witnesses reported that a prisoner heaved and snorted. One Arizona execution lasted almost two hours.

Critics took aim at Evans’ qualifications. In one Florida case, he testified that he had never used midazolam during treatment and had never induced anesthesia. In a different case in Oklahoma, the reference section of his expert report contained over 180 pages of printouts from the consumer website Drugs.com. Prisoners’ lawyers filed a motion to limit his testimony in that case because it would have extended beyond the scope of his expertise.

Friot, the district court judge who also oversaw the case in which Buffington and Van Norman testified last year, denied the motion and allowed Evans to testify. Friot’s denial was ultimately affirmed by the U.S. Supreme Court in 2015, when it ruled that Oklahoma’s execution protocol did not violate the Eighth Amendment. The majority opinion, written by Justice Samuel Alito, said Evans’ testimony was credible, noting that Evans had relied on multiple sources, not just Drugs.com. Justice Sonia Sotomayor harshly criticized the decision though, writing that Evans had offered “scientifically unsupported and implausible testimony” and made “wholly unsupported” claims about midazolam’s effect on the brain. (Evans did not respond to requests for comment on those criticisms and Friot declined to comment for this story.)

“[Midalozam] is incapable of rendering an inmate unconscious prior to the injection of the second and third drugs in the State of Oklahoma’s lethal injection protocol.”

—16 professors of pharmacology, in a brief filed with the Supreme Court

That year, Buffington accepted his first lethal injection case, according to a document he later submitted to a court. Attorneys at the Alabama attorney general’s office tapped both him and Evans to testify in defense of the state’s newly adopted lethal injection protocol. Thomas Arthur, a death row prisoner, had claimed the use of midazolam carried a substantial risk that he would experience the pain of a massive heart attack he said he was likely to suffer during his execution because of a health condition.

Like Evans, Buffington opined that high doses of midazolam would leave the prisoner unable to feel pain. Arthur’s lawyer, Adam Brebner, asked Buffington directly, “You have never prescribed or administered midazolam.”

“That is correct,” Buffington replied.

But later in the same deposition, the pharmacist contradicted himself.

“Are you entitled to write prescriptions for Class IV medication?” Brebner asked.

“Yes,” Buffington replied.

“Have you ever written a prescription for midazolam?” Brebner asked.

“Yes,” Buffington said. He had prescribed the drug to “a patient,” he said.

Later that month, lawyers for Arthur filed a motion to exclude, or at least limit, Buffington’s testimony. They argued that his report and testimony went “well beyond the expertise of a pharmacist” and his opinions on midazolam’s effects were “unreliable.” The district court did not consider Buffington’s deposition but decided the case in favor of Alabama, which executed Arthur in 2017.

Buffington went on to become one of a handful of experts that states tapped to testify in lethal injection litigation. And in some of those cases, he said that he had prescribed or could prescribe midazolam. His own accounting of his prescribing authority and experiences, however, varied from case to case, becoming a point of contention for prisoners’ lawyers.

In Ohio in 2017, he told lawyers that he had prescribed midazolam “probably three” times. Notably, he said he had done so only after his appearance in the Arthur case — a statement that contradicted his 2015 claim in that case that he had already prescribed the medication. But when subpoenaed by an Ohio federal public defender for details of his experience with the drug, he did not provide specifics, writing that he didn’t recall patient names and wasn’t aware of records from when he prescribed midazolam.

Three months after his Ohio testimony, he testified in Arkansas that he had prescribed midazolam during a clinical research procedure, though he clarified that he would call it an “order” — the term Buffington has sometimes used in court to describe prescribing medication in an in-patient setting. He said he couldn’t remember how many times he had done so.

But Buffington is not legally permitted to prescribe controlled substances. According to a DEA spokesperson, “a pharmacist’s ability to prescribe controlled substances is determined by state law,” and, by the agency’s count, neither Florida nor Georgia give pharmacists that authority. In response to questions for this story, the Florida Department of Health and the Georgia Pharmacy Board — along with several practicing and retired pharmacists, pharmacy professors and health law experts in the two states — confirmed those restrictions.

When asked about Buffington’s description of ordering controlled substances in an in-patient setting, health care law experts in Florida said that physicians — not pharmacists — are the ones who initiate such orders.

To be sure, Florida law has provisions that allow pharmacists to prescribe some drugs under the guidance of, or in collaboration with, a physician. But that power is strictly limited to noncontrolled substances for the treatment of minor conditions, like the flu and lice, or some chronic health conditions, such as asthma and Type 2 diabetes. Outside the courtroom, Buffington himself has underscored that very point. In a presentation that he prepared for the Florida Pharmacy Association’s 2021 annual meeting and convention, Buffington noted that those provisions of Florida law do not permit pharmacists to prescribe controlled substances, according to a copy of the presentation obtained by ProPublica and Type.

“Based on his education, training, and professional experience and licensure, Dr. Buffington simply has, in my view as an actual clinical pharmacologist, no expertise or qualifications that would support his rendering expert opinions on the basic and clinical pharmacologic issues in the present case.”

—Dr. David J. Greenblatt, pharmacologist

In response to questions, a spokesperson for Buffington said that the pharmacist had used the term “prescribing” to mean that he has “on numerous occasions advised, recommended and ordered patient medication … in collaboration with physicians.”

In some testimony, however, he has appeared to use a narrower definition of the term, distinguishing between prescribing and other actions. In Ohio, for example, he said in court he had only “recommended” midazolam during consultations before December 2015 but had since prescribed the drug. And in another case, in Florida, Buffington argued that the law allows him to actually write prescriptions for a wide range of medications. Specifically, in a 2017 hearing on the state’s lethal injection protocol, he said that under the right circumstances, he could write a prescription for morphine and midazolam, among other drugs, for the prison.

When asked about that testimony, the spokesperson said Buffington had never testified that he wrote an “outpatient” prescription and had never written a prescription for a controlled substance to be filled at a community pharmacy. Instead, “he has worked in concert with medical personnel in prescribing medication on an inpatient basis or special practice setting” in compliance with state and federal law.

Last year, his recollections of his prescribing history appeared muddier. Asked by an Oklahoma prisoners’ lawyer about whether he had written a prescription for midazolam, Buffington said the term had “broad meaning” but he did not remember whether he had prescribed the drug. “I would have to go back to look,” he said. “I said I don’t recall.”

In recent years, Buffington has won influential posts in state and national pharmacy groups, serving on the board of the American Pharmacists Association for three years and currently serving as chair of the Florida Pharmacy Association’s board. Representatives from both organizations did not comment on specific findings by ProPublica and Type Investigations, but Helen Sairany, the executive vice president and CEO of the Florida Pharmacy Association, wrote in an email, “Dan Buffington is a noble man and someone I look up to.”

Some of his peers on the lethal injection circuit have been less charitable. Experts in these cases often pick at the science presented by opponents. But in conversations with ProPublica and Type Investigations, and in expert reports submitted to the court, doctors and pharmacologists leveled an additional criticism akin to what Florida professionals had observed years ago: Buffington has testified beyond the scope of his education and training.

Buffington has a Doctor of Pharmacy degree and a master’s in business administration. And he has identified himself in testimony, depositions and court documents as a clinical pharmacologist and a toxicologist, specialties that can involve additional training and research into how drugs impact the body.

When asked to evaluate Buffington’s professional background, though, six professors who specialize in clinical pharmacology or toxicology felt his credentials did not meet the qualifications they would expect of someone who claims these titles. While Buffington did complete a yearlong clinical pharmacology fellowship after pharmacy school, experts noted his resume lacked other relevant markers, like robust research publication in their area of expertise and board certifications specific to their field.

In court, prisoners’ experts have challenged his opinions on similar grounds.

“Dr. Buffington is not a clinical pharmacologist; he is a clinical pharmacist,” wrote Dr. David J. Greenblatt, a pharmacologist who conducted some of the earliest research on midazolam, in a 2019 rebuttal report. “Based on his education, training, and professional experience and licensure, Dr. Buffington simply has, in my view as an actual clinical pharmacologist, no expertise or qualifications that would support his rendering expert opinions on the basic and clinical pharmacologic issues in the present case.”

In particular, opposing experts take issue with Buffington’s research experience, noting that it does not appear related to benzodiazepines — the class of drugs to which midazolam belongs. Of the published work listed on his resume, much of it is about administrative practices and health care policy.

In response to written questions, a spokesperson for Buffington disagreed with those assessments, saying Buffington “has significant training and professional expertise in the areas in which he testifies as an expert witness.” The spokesperson said that those with a doctor of pharmacy degree “have the greatest amount of clinical pharmacology training among all health care professionals, including physicians.” The spokesperson also said board certification is not necessary for clinical practice or giving testimony and that “there is no threshold to determine practice, knowledge, or experience based on the number of publications a practitioner has authored.”

All of this matters because many lethal injection cases have involved highly technical debates about how midazolam works in the body. And Buffington’s opinion — that there is no evidence of a ceiling effect — represents a divergence from many experts in the field.

“It is widely recognized in the scientific and medical community that midazolam alone cannot be used to maintain adequate anesthesia for surgery,” reads a brief from 16 professors of pharmacology that was filed with the Supreme Court in 2015. The drug “is incapable of rendering an inmate unconscious prior to the injection of the second and third drugs in the State of Oklahoma’s lethal injection protocol.”

“[People with a doctor of pharmacy degree] have the greatest amount of clinical pharmacology training among all health care professionals, including physicians.”

—A spokesperson for Daniel Buffington

Judges in two other lethal injection cases have cited similar concerns in temporarily halting executions using midazolam. Notably, in Ohio, the judge observed that Arizona and Florida had abandoned their use of the drug after issues arose during executions there. Ohio’s use of midazolam, he wrote in a 2017 order, created an “objectively intolerable risk of harm.”

A spokesperson for Buffington said Buffington stands by his assessment. To be sure, prisoners’ expert witnesses acknowledge that there haven’t been studies on midazolam doses as high as the ones used in lethal injections, but they say that the ceiling effect has been shown in studies with lower doses.

Opposing experts, however, are not the only ones whose opinions diverge from Buffington’s. His fellow state experts have been less forceful in denying that midazolam has a ceiling effect and in vouching for its ability to anesthetize someone at high doses. Last year in Oklahoma, for example, Buffington testified that general anesthesia induced solely by midazolam would last approximately 60 to 90 minutes. But another state expert, an anesthesiologist, said that the drug alone cannot maintain general anesthesia. Under questioning from the judge, he said that he would only rely on midazolam alone to induce anesthesia — that is, without the addition of other drugs — for a short procedure “where it was going to literally take 30 seconds,” but not for a longer procedure. (Buffington did not respond to a question about this testimony.)

The same state expert has disagreed with Buffington’s assessment of another drug as well. In 2017, for example, Buffington said that the injection of vecuronium bromide, a paralytic used as the second drug in lethal injection in some states, would be a “peaceful experience.” The anesthesiologist working for the state, however, disagreed, testifying in the same hearing that the resulting method of death would be the inability to breathe. (Buffington did not respond to a question about this testimony.)

When asked about his qualifications in court, Buffington has sometimes referred to his academic experience. “I am the person who teaches an anesthesiologist on medications used for anesthesia, for analgesia, for maintenance, for recovery,” he said two years ago in the Oklahoma lethal injection case. Asked where he had done so, he replied that he had taught at conferences, consultations and colleges of medicine, including Emory University and the University of South Florida.

Emory did not return multiple requests for comment and a USF spokesperson said that the school could not speak to whether Buffington has taught anesthesiologists there. The spokesperson did note, however, that the university has not had a department of anesthesiology for about two decades.

In response to questions from the news organizations, Buffington’s spokesperson said that Buffington has “conducted lectures for anesthesiologists at USF and across the Tampa Bay area,” though, when asked, did not give any more specifics. As for the claim about Emory, the spokesperson said Buffington doesn’t have those records, which would be from over 30 years ago.

Records obtained from 10 other universities, which were listed on Buffington’s resume, show that his teaching experience primarily consists of presenting guest lectures or instructing a single class. None mention anesthesiology.

Buffington has also worked as a consultant outside the courtroom in several states, including some that have faced challenges over the viability and constitutionality of their execution methods.

His spokesperson told ProPublica and Type that California, Georgia, Ohio, Florida and Alabama had asked Buffington “about the pharmacologic properties of drugs used in lethal injection protocols.” Those states did not respond to requests for comment, declined to comment or could not confirm Buffington's role.

In November 2020, Alabama tapped Buffington’s company to consult on nitrogen gas, which the state is planning to use to execute prisoners via suffocation. In a brief interview early in ProPublica and Type’s investigation, Buffington denied involvement with Alabama’s execution protocol, but confirmed that the state had asked him questions about “the pharmacology” of inert gasses. He blamed problems in past lethal injections on executioners who carried the procedure out improperly, not on the drugs that were used. Nevertheless, nitrogen, he said, would make it easier to ensure that nothing would go amiss. “I think that the use of the inert gasses represents a viable and effective alternative that may be quicker and potentially have fewer potentials for administration challenges,” he said.

In February, the state’s prison commissioner said that the department of corrections “should be” finished developing a nitrogen hypoxia protocol by the end of 2023. Alabama’s use would be the first time a state used such a method in an execution.

Meanwhile, Oklahoma is moving forward with lethal injection. It plans to execute Richard Glossip in May, roughly one year after a judge ruled against him based, in part, on the testimony of Buffington and the other state experts. In an interview with ProPublica and Type, Glossip said he was not surprised by the ruling. He had challenged the state’s execution method as cruel and unusual before, in 2014, and lost then too. He said he was now focusing on his family and bracing himself for the death chamber. “I tried to put as much of that behind me,” he said of the legal case, “because I know it’s a possibility that I’m gonna go back up there.”

Richard Glossip (Oklahoma Department of Corrections via AP)

Glossip, 60, has been scheduled for execution eight times before. Once, in September 2015, he was within hours of receiving the lethal injection when then-Gov. Mary Fallin called it off because Oklahoma had acquired the wrong drug.

More recently, officials have postponed the execution for other reasons. Glossip has long claimed that he’s innocent of the 1997 murder of a motel owner that sent him to death row, and last year, a bipartisan group of state lawmakers signed onto his cause, hiring a Texas law firm to investigate the case. The firm concluded that “no reasonable jury hearing the complete record would even have convicted Glossip.” In November, Gov. Kevin Stitt granted him a temporary reprieve so that an appeals court could have more time to consider his case. The state’s attorney general, raising concerns about the evidence behind the murder charge, also asked the Oklahoma court of criminal appeals to throw out Glossip’s conviction and order a new trial. The court, however, rejected that request last week, saying Glossip’s case “has been thoroughly investigated and reviewed.”

On Wednesday, the Oklahoma Pardon and Parole Board denied Glossip’s petition for clemency. His attorneys have asked the U.S. Supreme Court to stay his execution and have called on the governor to grant another temporary reprieve.

Still, correctional officers have told Glossip to start thinking about his last meal. In fact, he has eaten the same thing — a Baconator from Wendy’s, fish and chips, and a strawberry shake — so many times that they have recommended he try something new this time around: a local pizza place.

While his case plays out, Glossip spends the majority of his day confined in a small cell, where he has a TV and a digital tablet, which enables him to make calls. He talks to his wife, Lea, while eating dinner, and they watch old movies like “Rebel Without a Cause” together. On Sundays, she uses her phone to broadcast church services to him.

Since the court’s decision last year, Oklahoma has executed four prisoners: James Coddington, Benjamin Cole, Richard Fairchild and Scott Eizember. Each time, the cellblock grows quieter, Glossip said. And for those who are left, a key question about the execution process remains. “What if it goes wrong?” Glossip asked.

How We Reported This Story

To learn more about how Buffington became a regular on the stand in lethal injection cases over the last seven years, ProPublica and Type reviewed more than 14,000 pages of court transcripts, legal filings, personnel records, syllabi, emails, research studies, payment records and government contracts. We also communicated with and interviewed more than 100 people, including physicians, lawyers, legal experts, expert witnesses, scientists and professors. Some of those sources were involved in cases where Buffington also testified, including lethal injection cases and other civil and criminal litigation.

Nina Zweig and Maha Ahmed of Type Investigations contributed research.

by Robert Faturechi

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Investigators discovered photos of nude children, estimated to be as young as 8, in an email account they said was associated with South Dakota billionaire T. Denny Sanford, according to previously sealed records released Thursday.

The records — which ProPublica had been fighting to make public for almost three years — shed light on the origins of the child pornography investigation into Sanford, a credit card magnate and philanthropist who has donated vast sums to children’s causes.

In 2020, ProPublica first reported that South Dakota authorities were investigating Sanford and had referred the matter to the U.S. Department of Justice. Last year, the South Dakota attorney general announced it closed its investigation without filing charges.

The status of a federal investigation into the matter remains unclear. A DOJ spokesperson declined to comment Thursday when asked whether the department’s inquiry remains open.

The investigation of Sanford started after AOL’s parent company sent a tip to the National Center for Missing & Exploited Children, which passed it on to authorities in South Dakota, according to the new documentation. The center is a private nonprofit that operates a tip line where people and companies can report images of suspected child sex trafficking and abuse. The organization’s staff reviews the tips and refers them to law enforcement.

The material provided to the organization included 36 image files with child pornography in an AOL account that investigators linked to Sanford, according to the documents released Thursday.

Sanford’s attorney, Stacy Hegge, released a statement Thursday that said various other people had access to Sanford’s electronic devices and that prosecutors ultimately decided against filing criminal charges in the case. “Mr. Sanford appreciates that after a thorough investigation the authorities concluded there exists no prosecutable offense. Here, because there is no prosecutable case or further action to be taken, the court records being released contain only allegations. These preliminary allegations were provided to law enforcement prior to law enforcement’s exhaustive investigation and its realization that various individuals had documented access to the electronic devices at issue, including signs of hacking. While some claim releasing affidavits that reiterate these allegations constitute transparency, releasing preliminary allegations made prior to completing the full investigation only misinforms people and obscures the investigation’s conclusions that no prosecutable offense occurred.”

Sanford’s lawyers did not respond to further detailed questions.

Investigators with the South Dakota attorney general’s office obtained five search warrants in 2019 and 2020 for Sanford’s email, phone and internet data. The newly released documents are investigators’ sworn affidavits in support of those warrants.

According to the new records, agents believed they had found probable cause that a crime had occurred involving Sanford, who is one of the nation’s leading philanthropists.

The affidavit said that while many of the images were duplicates, an agent had found three unique photos, all of nude girls. The agent estimated one to be between 8 and 12 years old, another to be between 12 and 15, and a third to be between 10 and 15.

The law enforcement records include descriptions of the images. One photo is of “a nude juvenile female standing facing the camera. Her breasts and vagina are visible in the image. There is snow in the background and her hair is brown. The estimated age of the juvenile is 8 to 12 years old.”

The records seem to suggest Sanford’s email account sent the emails with the images, but because of redactions, it’s not clear. The identity of the email account receiving the message was also redacted. At least one of the images, according to the agent’s description, appears to be a photo taken of another screen.

“I feel that the content of the image files described above fit the definition of child pornography as described in South Dakota Codified Law,” an investigator wrote.

Geolocation data the agents reviewed pointed to locales where Sanford has homes, including La Jolla, a suburb in San Diego; Scottsdale, Arizona; and Sioux Falls, South Dakota.

ProPublica won access to the search warrants in the case and the affidavits detailing the cause for the warrants after litigation that reached the state’s highest court. Sanford unsuccessfully asked the courts to block release of the records, which are supposed to be publicly accessible under state law, and constrain ProPublica’s reporting on the case. He was represented during part of that time by South Dakota’s ex-attorney general, whose former office launched the investigation, and who has since again been elected to the job again.

ProPublica’s general counsel, Jeremy Kutner, lauded the release of the records: “We are delighted that the court has, for the second time, vindicated the public’s essential rights to monitor law enforcement and the criminal justice system, rights clearly enshrined in law. But the baseless delays foisted on the public by Sanford and his attorneys throughout this case are a testament to how fragile those rights can be. This ruling is a reminder that the predilections of the powerful should never override the law.”

by Paige Pfleger, WPLN/Nashville Public Radio

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

The first time Tennessee’s Republican governor stood at the podium in the wake of the mass shooting at the Covenant elementary school last month, he was flanked by GOP lawmakers. They touted school “hardening” measures, including hiring more armed guards and strengthening entry points.

A week later, Gov. Bill Lee stood alone. He called for something rare in a Second Amendment-friendly state like Tennessee: gun-control measures. The violence had struck close to home, taking the life of six victims, including a close family friend of the governor’s.

“I’m asking the legislature to bring forth thoughtful, practical measures,” Lee said. “To strengthen our laws, to separate those dangerous people from firearms, while at the same time preserving the constitutional rights of the people of this state.”

Republican lawmakers pushed to end their legislative session early rather than take up his proposals. Lee responded within hours by saying he would force legislators to return to the Capitol for a special session.

Tennessee Gov. Bill Lee (Mark Zaleski/AP)

But the problem with the governor’s proposal is more than just political. The approach he landed on would expand a system already in use in Tennessee — one that has allowed guns to slip through the cracks with deadly consequences.

A 13-page draft of Lee’s proposal lays out how the new process of separating a dangerous person from their guns would work.

If someone had concerns that a person was a threat to themselves or others, they would be able to alert law enforcement, which could ask the courts for what Lee is calling a “temporary mental health order of protection.” The gun owner would hold onto their gun but would be required to attend a hearing within 10 days. Before appearing in court, they would undergo an assessment for suicidal or homicidal ideation.

The court would then decide whether to issue the order, which would instruct the gun owner to surrender their guns for 180 days.

The governor says his proposal would be an expansion of a system that exists for domestic violence victims, put in place in 2009, which allows victims of domestic violence and stalking to indicate if their abuser has a gun and allow a court to decide whether the weapon must be surrendered. Under Lee’s proposal, this process would be available to the general public, beyond just family or dating relationships.

On paper, the proposal does provide broader coverage. But in practice, Tennessee’s current gun dispossession process has a significant and sometimes dangerous loophole, which kicks in immediately after an abuser is ordered to give up their guns. While other states require guns to be turned over to law enforcement, Tennessee allows someone to give their guns to a third party, like a friend or a relative. That’s the most common outcome in Tennessee, but a rarity in the rest of the country — about a dozen states allow third-party dispossession.

Those other states have a patchwork of rules that help ensure that the weapons are safely turned over to a third party, including identifying who received the gun, bringing the recipients to court to explain their responsibilities or even holding them liable if the gun ends up in the wrong hands.

Tennessee hasn’t adopted any of those practices, and the state doesn’t require the third party to be identified in paperwork.

The state also has no mechanism to ensure that the gun is actually ever turned over to that third party at all. Instead, the system trusts that a person who is abusing their partner will keep their word and surrender their weapons. The gun owner is supposed to fill out an affidavit indicating how they dispossessed, but advocates for domestic violence victims say that form rarely gets filed with the court.

“Then everything falls apart,” said Linda McFadyen-Ketchum with the gun control advocacy organization Tennessee Moms Demand Action. “There’s no follow-through to see if people really did dispossess. Where are the guns? Who did you give them to?”

Linda McFadyen-Ketchum speaks to a crowd at a gun-control rally outside the state Capitol the day after the shooting at the Covenant School. (Paige Pfleger/Nashville Public Radio) The Toll

The consequences of this system can be dire. Tennessee, like most states, keeps no record of how many people are killed by guns that the perpetrator should not have had. But Nashville’s Office of Family Safety, a division within the city government that works with domestic violence survivors, does keep track.

Their numbers provide a limited glimpse, over just a few years, into the death toll of the flawed system.

From 2018 to 2020 in Nashville, 27 people died in domestic violence shootings. The office used court records to find that roughly half of the perpetrators of domestic violence gun homicides were prohibited from having access to a weapon at the time of the shooting. They could have been barred because of a domestic violence charge, an order of protection, a felony conviction or their age.

Marie Varsos lost her life to that loophole. She filed an order of protection against her estranged husband, Shaun, in 2021 and told law enforcement and the courts that he had a gun and threatened to kill her with it.

Shaun Varsos was ordered to dispossess and said in a hearing that he was giving his guns to his parents — utilizing the third-party loophole.

Less than a month after Marie Varsos sought an order of protection, Shaun Varsos used his guns to shoot and kill her and her mother, Debbie Sisco. Then, he shot and killed himself.

Marie’s brother, Alex Youn, believes that order likely just spurred Shaun to act.

“It only infuriates them,” Youn said. “And makes them even more angry and has the ability to set them off when an order of protection actually doesn’t have any teeth.”

Marie Varsos’ story fits into a broader picture in Tennessee — the state has one of the highest rates of women killed by men in the country. From 2018-20 there were nearly 300 domestic violence homicides in the state. Most were perpetrated with a gun, but there’s no record of how many were perpetrated with a gun that the shooter was not allowed to have.

The Reform

Lee’s proposal is similar to a “red flag” law, also known as an extreme risk protection order. Those laws can allow law enforcement to seize firearms.

Florida created a “red flag” law in the wake of the 2018 school shooting at Marjory Stoneman Douglas High School. Since then, judges in Florida have acted thousands of times to separate dangerous people from their guns.

But in a pro-gun-rights state like Tennessee, such reforms face fierce resistance. While recent polling has shown the majority of Tennessee voters support a “red flag”-style law, Lee was careful not to use that term. Leaders in the Republican legislature have described such a policy as a nonstarter — broadly opposing any laws that allow for someone’s guns to be taken away.

Instead, Lee wants to build on the widely accepted law that already exists for domestic violence victims. And to assuage Republican concerns, gun surrender would remain voluntary.

When reached for comment, Lee’s office didn’t address the specific problems with the current system but stated that the law could be strengthened and expanded during the legislative process.

Lee’s proposal does include some improvements to that system.

It instructs judges to bring the gun owner back to court within seven days if they fail to fill out paperwork indicating they gave up their firearms. And it requires proof of dispossession — though it doesn’t indicate what evidence would suffice.

Yet advocates think it does not go far enough, in large part because it still allows for guns to be given to an anonymous third party.

“If we’re going to allow third parties to have the firearms dispossessed to them, we need to know who that third party is,” said Becky Bullard of Nashville’s Office of Family Safety.

Bullard is one of many advocates for domestic violence victims who has pushed for the legislature to fix the problems with Tennessee’s order of protection law in the past five years

So far, those efforts have been unsuccessful.

One attempt at reform came after Travis Reinking walked into a Nashville Waffle House and opened fire in 2018. He killed four people and injured several others. Reinking came from Illinois, where he had been ordered to give up his firearms because of prior offenses. He gave his guns to his father, yet one of those weapons was used in the shooting.

In the aftermath, Illinois tightened its dispossession processes. The criminal court sentenced Reinking to life in prison without the possibility of parole, but it also sentenced his father to 18 months for letting his son have access to weapons.

“Being able to do what Illinois did and hold that father accountable … is a really important safety mechanism if we’re going to allow third party dispossession,” Bullard said.

But when lawmakers and advocates like Bullard introduced a similar reform in Tennessee a year after the Waffle House shooting, it did not pass.

Now advocates are worried the Covenant School shooting may have the same outcome — another tragedy without meaningful reform.

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by Jennifer Berry Hawes

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When attorneys arrived for oral arguments in South Carolina’s high-profile abortion case last fall, state Supreme Court Justice Kaye Hearn took her seat up front, a ruffly white shirt beneath her black robe, the only woman on the dais. With piercing green eyes, she scanned the courtroom.

A sea of white men jammed one side of the room. Before them, at a wooden table, sat three male attorneys there to argue in favor of the state’s law banning abortion after about six weeks of pregnancy.

On the other side of the room, a group composed mostly of women crowded benches behind a female attorney who had challenged the law.

Even in these polarized times, the starkness of the divide stunned Hearn.

South Carolina’s high court was among the first to hear an abortion law challenge after the U.S. Supreme Court released its Dobbs v. Jackson decision last June, overturning the country’s landmark abortion rights case Roe v. Wade and kicking the combustible issue to the states. Hearn knew the nation was watching. But she didn’t anticipate that the arguments about to begin in that divided courtroom would contribute to an even starker gender divide on the court where she sat.

Three months later, on Jan. 5, the justices struck down the deep red state’s abortion law. By a 3-2 vote, the majority ruled that the law violated the state’s constitutional right to privacy. Hearn wrote the lead opinion, a capstone of sorts given she had reached the mandatory retirement age of 72.

While abortion rights supporters rejoiced, the ruling outraged the General Assembly’s new supermajority of Republicans, many of whom derided her as an activist jurist. They also saw an opening.

In South Carolina, unlike all but one other state, the legislature alone selects judges. And in just a few weeks, they would vote on Hearn’s replacement.

The three candidates, who’d been put forward by a legislative commission, were all widely respected judges on the state Court of Appeals: one man, two women. Both women had longer tenures on the state’s second-highest court than the man. One had beat him before: She’d won over legislators in the 2014 race for her appeals court seat. He arrived three years later.

It wasn’t certain how any of the candidates might rule on an abortion case. (Before Dobbs, federal courts handled nearly all abortion law.) Nor were the candidates’ political views obvious; state judicial canon strictly forbids commentary on controversies or issues that may come before the court.

But before lawmakers could cast their votes, the overwhelmingly male lot of Republicans rallied behind the male candidate, Gary Hill, ultimately creating the only all-male state Supreme Court in the nation.

Judge Gary Hill waves after South Carolina lawmakers voted to make him the next state Supreme Court justice on Feb. 8. Hill’s replacement of the retiring Justice Kaye Hearn makes South Carolina the only state without a woman on its Supreme Court. (James Pollard/AP Photo)

“It’s all kind of clandestine, cloak and dagger,” said Barbara Rackes, president of SC Women in Leadership, which works to boost women’s influence and representation in the state. “It was not happening in the committee chamber or on the floor. The decision was made in the backroom.”

As Republican lawmakers coalesced behind Hill, people who know the female candidates described them as grappling with intense pressure to withdraw quickly. Neither judge responded to requests from ProPublica for comment. Hearn said she had spoken to both, and they were “very hurt by the process.”

Democratic Rep. Beth Bernstein, an attorney on the state House Judiciary Committee who also chairs the House women’s caucus, called outrage over the abortion decision “the reason we don’t have a Supreme Court justice who is a female.” A contingent of lawmakers “felt a woman couldn’t vote on this issue objectively maybe, which is mind-boggling to me because its impact on women is most substantial.”’

Justice Hearn agreed: “I do think the fact that he was a man was important to some of them.”

Republican Rep. Micah Caskey, a former prosecutor, said he supported Hill because of the acumen he witnessed during Hill’s 13-year tenure on the circuit bench. But he said the abortion ruling, so fresh at the time, motivated other Republicans.

“There are certainly people who voted for Judge Hill on the basis of their understanding of where he would be on abortion,” Caskey said.

Got a Tip?

Reporter Jennifer Berry Hawes wants to better understand why some areas of the country have a record number of women serving in public office while others lag far behind. To understand the scope of barriers, we need to hear from women across the political spectrum who have campaigned or served. Have you received comments, social media posts or campaign tactics that targeted you due to your gender? Have you experienced sexual harassment? Other significant barriers? Reporter Jennifer Berry Hawes would like to hear from you. Reach her by email at Jennifer.Hawes@propublica.org or by cell, Signal or WhatsApp at (843) 509-9794.

Following Dobbs, South Carolina’s race underscores the newly starring role of states’ top courts in determining abortion access — and the resulting impact on who gets chosen to serve on them. The machinations have left many in the state fearing increased politicization of their already unusual judicial selection process, which gives near-total power to politicians.

Consequences of an all-male high court are especially pronounced in this state, which consistently ranks at the bottom of lists measuring women’s well-being.

Women there already have among the weakest representation in the country. Only 14.7% of state lawmakers are women. The house speaker and pro tem are men. Ditto for the senate president. The governor is a man. (The lieutenant governor is a woman.)

Only two women have ever served on the state’s Supreme Court.

And now there are none.

Stronghold of Men

All three judges who vied for the seat are highly regarded in legal circles across the state. Among them, Judge Aphrodite Konduros brought the most experience.

After almost 15 years on the Court of Appeals, she had written more than 400 opinions, signed on to another 800, and served far longer than the other two candidates. The granddaughter of immigrants, she also had been a family court judge and served as counsel for two state agencies.

Earlier in her career, Judge Stephanie McDonald left a law firm during a very difficult pregnancy, then started her own firm so that she could best raise her daughter. She persevered to become a successful trial attorney, circuit judge and appellate judge — the seat she took after beating the male candidate she would face again for the Supreme Court post.

But the women also worked in a state long known for its “good old boy” culture and the generational legal legacies that elevate certain men in the halls of its courthouses — and in its Statehouse. These men enjoy long-standing relationships with their fellow male attorneys in the legislature, which, in turn, holds near-total power over electing judges.

A key gatekeeper in the process is the state’s Judicial Merit Selection Commission, a group comprising mostly legislators who screen candidates and choose up to three they deem qualified for each open seat. The entire General Assembly then votes on them.

At a commission hearing in November to interview the candidates, then-Chairman Luke Rankin, a powerful Republican senator, welcomed Hill with familiarity.

“Obviously, I know you. We were in law school together. I think maybe I’m substantially older than you, but we were there at similar times. But your father and my father were contemporaries,” he said before lauding Hill’s late father, a former president of the South Carolina Bar whom he described as legendary.

“I remember meeting him when you and I were punks at Hilton Head with the thought of law school perhaps ahead of us,” Rankin said.

Hill, who can trace his family lineage in South Carolina back at least to the 1850s, also clerked for former 4th Circuit Court of Appeals Judge William Wilkins, an esteemed figure in the state’s judicial circles. After clerking, Hill went on to join his father’s law firm, and they later opened a firm together.

Yet, early on, it appeared at least one of the women had a decent shot, especially in a contest to replace the only female justice. Hearn and others figured Konduros was the likely front-runner. Although quick to praise all three judges, she called Konduros “one of our superstars.”

Then, on Jan. 5, came the abortion ruling.

At the time, a new far-right group freshly empowered by gains in November’s election had grabbed hold of the party’s right flank on abortion. Called the Freedom Caucus, its 18 members were determined to get a justice who would uphold a future abortion ban. None of the members ProPublica contacted would comment.

Joining with other Republicans, they coalesced around the male judge, leaving many to wonder if that support stemmed from two intermingled factors: abortion and gender.

“Nothing in the judicial record of the two female candidates seemed to be at issue. It was entirely their gender that disqualified them,” said Lynn Teague, a lobbyist for the League of Women Voters of South Carolina.

But Republican lawmakers insist they saw important differences among the candidates.

Rep. Anne Thayer said far more people in the legal community in her district, which sits in a conservative part of the state not far from where Hill lives, contacted her to praise him. Konduros was also seen as Hearn’s close friend and perhaps hand-picked successor. “I think that probably hurt her a lot” due to Hearn’s opinion in the abortion case, Thayer said.

McDonald, meanwhile, had practiced law with Republican Sen. Sandy Senn, who opposes the strictest abortion bans, creating the perception she might be like-minded, several lawmakers said.

Republican Rep. Sylleste Davis said of her vote for Hill: “I’m focused on the person I think is best for the job.”

She was among a group of lawmakers who met privately with the candidates to question each of them. She said she came away most impressed by Hill: “I could tell he was very thoughtful about every question and every answer.”

Republican Rep. Matt Leber had a similar experience meeting with the three candidates after the abortion ruling. He said Hill “can quote the Federalist Papers and all this, and he just outshined the other two.”

McDonald came across as “completely capable,” he said. Konduros did as well, although Leber said she came across as a bit more “aggressive” and “abrasive.” That wasn’t a deal breaker for him, he said, but given all three candidates were impressive, “every little thing counts.”

For many women, that observation may echo expectations that they soften their edges so men don’t find their assertiveness off-putting. One former judge said this can be especially challenging for female judges who must control their courtrooms — and the men who appear before them — to ensure fair and proper proceedings.

Some Republicans also said that Hill struck them as the most reliably strict constructionist — meaning he will interpret the literal meaning of language when it was written — something of key importance given they had blasted the abortion ruling as judicial activism.

But when ProPublica asked several of them to name a specific appeals court case in which Hill ruled in a way that made him appear more of a strict constructionist than either female judge, none of them did.

Intense Pressure

On Jan. 17, mere hours after the judges were allowed to begin seeking vote pledges from lawmakers, the two female candidates bowed out. The move shocked some observers, who accused Republicans of backroom deals and partisanship that pushed the women to quickly withdraw.

“That would be like me running for Senate, and then on the day of the election I pull out 15 minutes before the polls open,” said Sen. Senn, the Republican who practiced law with Judge McDonald until a decade ago.

In South Carolina, judicial candidates cannot seek commitments — nor can lawmakers give them — until the Judicial Merit Selection Commission issues its final report regarding judges’ qualifications. It released that report on Jan. 17 at noon.

The House GOP caucus met that morning. Several legislators told ProPublica that one of the female judges began communicating to close supporters that she was withdrawing around that time, before any votes could be legally offered or tallied.

At 4:40 p.m., the commission’s counsel emailed members notifying them that both women had formally withdrawn, lawmakers said.

It is customary for judicial candidates who lack support to politely back out before the legislature formally votes. But that doesn’t typically happen before at least a few days of jockeying once everyone can discuss pledges.

“You could not have run around the House floor fast enough” to solicit votes before the two bowed out, Teague said.

Senn soon publicly voiced allegations that she’d heard her colleagues in the Republican House caucus had conducted a secret poll before they were allowed to pledge commitments — then used the result to force the women out.

Republican Sen. Katrina Shealy, once the only woman in the Senate, said pressure on the women meant that anyone who wasn’t in the House caucus meeting, particularly senators and Democrats, had almost no time to pledge — and try to spread support — for them. She said that she didn’t doubt Hill’s talent but was angry the women dropped out without more of a fight. “We had two qualified women running and didn’t have an opportunity to vote for them,” she said.

Citing caucus confidentiality, nearly all House Republicans reached by ProPublica refused to address whether they took a poll that morning. Speaker Murrell Smith declined to be interviewed, although a spokesperson said the speaker maintains the allegations are “baseless.”

The few Republicans who would discuss the caucus meeting denied wrongdoing.

“I don’t think that there were any lines that were crossed or anything like that,” said Republican Rep. Neal Collins, who sits on the House Ethics Committee. “Nobody was forced into commitments. Nobody asked for any commitments. Nobody made any commitments.”

Caskey, who was vice chair of the Judicial Merit Selection Commission at the time and is now chairman, is a former prosecutor who also sits on the House Ethics Committee. He wouldn’t elaborate on the caucus meeting other than to say they discussed the race, but he noted that decisions made there are not binding regardless.

Yet, even to him, the women’s withdrawal came unusually early: “I can’t recall any other instance of a judge in any race or any candidates — certainly not both, or certainly not two of three candidates — getting out of the race on the first day.”

As the clock ticked on Jan. 17, Hearn began receiving messages that the women lacked support.

“My heart sank,” she said. “I was devastated.”

Hearn stands in her office in Conway, South Carolina, on April 6. (Madeline Gray for ProPublica)

A few days later, Senn blasted her Republican colleagues for pushing out two qualified women. “We know it isn’t really about the smartest judge or the best candidates,” she told the Senate. “It is about who you know will demand forced birth.”

In early February, 140 of the state’s 170 legislators voted for Hill, the only candidate left. Eight voted against him; three voted present. None of the five women in the 46-member Senate cast a vote in his favor.

Shealy was among those who voted present. “It was a statement,” she said.

History Repeating

Hearn, standing in the balcony of the state House, responds to applause after she was elected the first female chief judge of the state Appeals Court by the legislature on June 2, 1999. (Lou Krasky/AP Photo)

Back in 1999, Hearn was elected the first female chief judge of the state appeals court on the same day the first and only woman on the Supreme Court was elected its chief justice. A decade later, Hearn joined Justice Jean Toal on the high court.

As other states set records for electing female justices, Toal and Hearn remain the only two women to reach South Carolina’s highest court. Many other Deep South states aren’t faring much better. Mississippi’s Supreme Court has one female justice and eight males. Louisiana has one woman and six men.

Alabama and North Carolina each have two female justices. Neighboring Georgia comes closer to a representative court, with four females and five males. Tennessee is a notable outlier, with a high court comprising 60% women. However, the court is small — only five justices — and one of its three women has been on the bench for 27 years.

In South Carolina, women are better represented on the lower court. Half of its Court of Appeals judges are women. Yet, the glass ceiling to the top court remains remarkably shatterproof.

“The stakes are higher there. That body is the checks and balances for the legislature,” Hearn said from her chambers in Conway, a county seat about 15 miles inland from Myrtle Beach. (Retired justices continue to write opinions and do other work on cases they heard previously.) She wore a pale pink suit to signify the importance of women on the bench.

Jessica Schoenherr, who teaches about America’s judicial system at the University of South Carolina, examines challenges to diversifying the bench. She called South Carolina unique in going from at least one woman on the court to none. “They went backward, and across the world, that almost never happens,” she said.

Agree with it or not, Hearn’s ruling that overturned the six-week ban was informed by her personal knowledge of the way a woman’s body works and when she realizes she’s pregnant. “I do think women have an understanding that this business of six weeks” is “just impossible,” she said. “It's not workable.”

As she looked out over the divided courtroom that day back in October, she was well aware of the perspective she brought to the case at hand.

Quizzing a male attorney for the male governor, she asked about a privacy provision in the state constitution that some legal experts had argued protects the private and personal right to abortion. “What could be more personal than a woman’s decision to have an abortion?” she asked.

The lawyer began to invoke Roe v. Wade, the U.S. Supreme Court’s now-defunct 1973 decision that guaranteed a right to abortion.

She interrupted: “I’m asking you. I know you’re not a woman, but what could be more personal than that decision?”

“Your honor, there could be any number of things that could be more personal…”

She cut in: “Name me one.”

A painted portrait of Hearn hangs in a courtroom at the Horry County Judicial and Administration Complex in Conway. (Madeline Gray for ProPublica)

In the months since the South Carolina court’s explosive ruling, Republicans have repeatedly tried to pass a new abortion ban.

Just this week, the Senate’s president tried yet again, pushing for a vote on a bill the House passed that would prohibit the vast majority of abortions after conception. But he couldn’t overcome a substantial obstacle: the Senate’s five women. The three Republicans and two Democrats banded together to control debate until the chamber voted to scrap the bill for the session, leaving the House and Senate at an impasse.

If the two chambers ever do agree on a new abortion law, one thing is clear: It will almost certainly reach the Supreme Court. And this time, the women gathered in its stately courtroom would face a bench filled with men.

Kirsten Berg contributed research.

Correction

April 28, 2023: This story originally misstated the color of retired judge Kaye Hearn’s eyes. They are green, not blue.

by Tim Golden

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From the first weeks after the 9/11 attacks, suspicions about a possible Saudi government role in the plot have focused on a mysterious, 42-year-old graduate student who welcomed the first two Qaida hijackers after they landed in Los Angeles in January 2000.

The Saudi student, Omar al-Bayoumi, claimed to have met the two terrorists entirely by chance; he said he was just being hospitable when he helped them settle in San Diego. Both the FBI and the 9/11 Commission supported Bayoumi’s account, dismissing the suspicions of agents who thought he might be a Saudi spy.

After nearly 20 years, however, the FBI has changed its story. In documents declassified last year, the bureau affirmed that Bayoumi was in fact an agent of the Saudi intelligence service who worked with Saudi religious officials and reported to the kingdom’s powerful ambassador in Washington.

Omar al-Bayoumi (Saudi Government via Al Arabiya)

Those revelations have now become a central point of contention in a long-running federal lawsuit in New York, where 9/11 survivors and relatives of the 2,977 people who were killed are seeking to hold the Saudi government responsible for the attacks.

Lawyers for the families argue that the new evidence so contradicts earlier Saudi claims that they should be allowed to seek new information from the country’s intelligence service about Bayoumi and another official who reportedly aided the hijackers, Fahad al-Thumairy.

“Saudi Arabia has a duty to tell the truth about the intelligence roles of Bayoumi and Thumairy based on its actual, complete knowledge,” the plaintiffs wrote in a motion this month.

The federal magistrate who is managing discovery in the case, Sarah Netburn, has so far sided with the Saudis, finding “no compelling reason” to reopen the document search or order new interviews with Saudi officials. The families’ lawyers have asked the judge overseeing the case, George B. Daniels, to overrule her.

The Saudi government has always denied playing any role in the 9/11 attacks. A joint CIA-FBI report in 2005 concluded there was “no evidence” that the Saudi government or royal family “knowingly provided support” for the 9/11 plot. It also claimed there was “no information” that Bayoumi was a Saudi “intelligence officer” or that he “wittingly” aided the hijackers.

Regardless of the impact that the Bayoumi information might have on the litigation, it has already rewritten an important part of the story about how the Qaida plotters took their first, incongruous steps in Southern California.

The chief architect of the attacks, Khalid Shaikh Mohammed, is said to have denied that the hijackers had any confederates waiting for them in the United States. After being tortured by his CIA captors, Mohammed told them he instructed the first two hijackers to present themselves at local mosques as newly arrived students seeking help, the 9/11 Commission stated.

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The two Saudis, Khalid al-Mihdhar and Nawaf al-Hazmi, were known to both Saudi intelligence and the CIA as Qaida operatives. The CIA was watching as they joined a Qaida planning meeting in Kuala Lumpur, Malaysia, in the first days of January 2000. But the agency said it lost track of the two when they flew on to Bangkok and then to Los Angeles on Jan. 15, 2000. The CIA did not alert the FBI for more than a year after it learned the terrorists had entered the United States using their real names and Saudi passports.

Mihdhar and Hazmi, who were both in their mid-20s, were notably ill-equipped to make their way in the West. They spoke almost no English and understood little about American culture. When they tried to take flight lessons in San Diego, their instructor quickly gave up on them because their language skills were so poor.

For years after the attacks, FBI investigators were uncertain how the two hijackers spent their first two weeks in Los Angeles. But later evidence suggests they arrived almost immediately at the King Fahad Mosque in Culver City, just down the street from Sony Pictures Studios.

The white-marble mosque was an anchor of a Saudi government network of religious operatives who propagated the kingdom’s conservative Wahhabi faith around the United States. Some clerics and others in the network also worked with the Saudi intelligence service, reporting on Muslim communities and keeping an eye on dissident Saudis overseas.

“Saudi government officials and intelligence officers were directly operating and supporting the entities involved with this network,” the FBI stated in a lengthy 2021 synthesis of reporting on the Saudi connections that was declassified last year.

The FBI’s initial investigation of the 9/11 plot focused in part on Thumairy, a 32-year-old cleric who served the religious network as an imam at the King Fahad Mosque while also credentialed as a midlevel diplomat at the nearby Saudi Consulate.

In 2007, the FBI began a follow-on inquiry, Operation Encore, which delved more deeply into the mosque’s ties to the hijackers. One witness, vetted by both the FBI and CIA, told Encore investigators that Thumairy asked a trusted parishioner, Mohammed Johar, to house the two Saudis after they arrived in Los Angeles. The informant said Johar was also told to take the hijackers to the small halal cafe where they met Bayoumi on Feb. 1. (In interviews with ProPublica, Johar minimized his help for the two men and denied that it came at Thumairy’s request.)

Although FBI witnesses suggested that Bayoumi received instructions at the consulate to go to the cafe, he claimed he just happened to stop there for lunch and introduced himself after he heard Hazmi and Mihdhar speaking Gulf-accented Arabic.

Bayoumi said he suggested that his compatriots move to San Diego, which they did three days later. He arranged for them to rent an apartment in his building, set up a bank account for them and briefly lent them $1,558 for their rent and security deposit. He also introduced them to various Muslim immigrants who helped them with tasks like setting up personal computers, starting English classes and getting driver’s licenses.

The FBI office in San Diego, suspicious of Bayoumi’s ties to local Muslim extremists, had begun a preliminary investigation of his activities in 1998. Rather than attend graduate school, agents found, Bayoumi frequented local mosques, doling out money for various causes and frequently videotaping visitors in an unsubtle way. He reportedly put up $400,000 to start a mosque in the San Diego suburb of El Cajon. Throughout his time in the United States, Bayoumi was paid a stipend and other expenses as a ghost employee of a Saudi contracting company, the FBI reported.

Nonetheless, an FBI official, Jacqueline Maguire, testified to the 9/11 Commission in 2004 that Bayoumi’s initial meeting with the hijackers appeared to be “a random encounter.” The commission, which interviewed Bayoumi in Saudi Arabia, judged him a devout, outgoing man and accepted his denials that he was a spy.

More than a decade later, Maguire repeated to a 9/11 review commission that Bayoumi’s dealings with the hijackers appeared to be “accidental.” The Encore investigators strongly disagreed, but their small team was disbanded in 2016 by senior FBI officials in New York.

A more definitive FBI report that was declassified last year validates the Encore agents’ suspicions. That document, dated June 14, 2017, states that from 1998 until the 9/11 attacks, Bayoumi “was paid a monthly stipend as a cooptee of the Saudi General Intelligence Presidency (GIP) via then Ambassador Prince Bandar bin Sultan Alsaud.” In the lexicon of intelligence gathering, a cooptee is generally a diplomat or other official who is recruited by their government’s spy service for a specific task or mission, usually of lesser importance.

The information that Bayoumi gathered “on persons of interest in the Saudi community in Los Angeles and San Diego and other issues, which met certain GIP intelligence requirements, would be forwarded to Bandar,” the FBI report says. “Bandar would then inform the GIP of items of interest to the GIP for further investigation/vetting or follow up.

“Allegations of Albayoumi’s involvement with Saudi intelligence were not confirmed at the time of the 9/11 Commission Report,” the report notes. “The above information confirms these allegations.”

Another FBI report, dated the following day, cites “recent source information” as confirming Bayoumi’s work for Saudi intelligence services.

“We could see from a block away that Bayoumi was an intelligence guy,” the lead agent on the Encore team, Daniel Gonzalez, said in an interview. “It’s evident now that he was tasked with helping the hijackers — that he was running a clandestine operation. So, who was running it?”

The FBI documents do not clearly answer that question. But they add detail to an existing picture of calls and meetings among Bayoumi, Thumairy and members of the Saudi government’s religious network around the time of the hijackers’ arrival in California.

Just before meeting with the hijackers, Bayoumi met at the Saudi Consulate with an official who worked with Thumairy, one witness told the FBI. After meeting Hazmi and Mihdhar, the source told investigators, Bayoumi met with Thumairy at the King Fahad Mosque. (Thumairy has denied that he helped the hijackers.)

Several days later, as Bayoumi was setting up the hijackers’ bank account in San Diego, telephone records gathered by the FBI show that he called Thumairy — one in a series of calls between the two men. Around the same time, Bayoumi also called a Yemeni American imam in San Diego, Anwar al-Awlaki, who would later emerge as a leader of al-Qaida in the Arabian Peninsula.

Although it was known that Awlaki had contact with the hijackers in San Diego, he was still viewed as a Muslim moderate for several years after the 9/11 attacks. But newer FBI documents suggest that Awlaki might have played a more significant role in working with Bayoumi to help Hazmi and Mihdhar.

Awlaki was killed in Yemen in 2011 by a drone strike ordered by President Barack Obama.

Several of the more recently declassified FBI documents, including the 2021 synthesis , also shed new light on the relationships of Bayoumi and Thumairy with key figures in the Saudi religious network that operated in the United States.

Between January and May 2000, the report notes, two cellphones “associated with Bayoumi” registered 24 calls to the Saudi Consulate, 32 to the embassy in Washington and 37 to the Saudi cultural mission in Virginia.

Bayoumi made a series of calls right before and after the hijackers arrived in San Diego to Mutaib al-Sudairy, a Saudi cleric who had visited him in California months earlier. Sudairy, who nominally worked as an administrative officer at the Saudi Embassy in Washington, lived for several months in Missouri with a Palestinian American man who reportedly procured satellite phones and other equipment for Osama bin Laden. Sudairy was also linked “to suspected Al Qaeda operatives in Saudi Arabia,” the report says.

Both Bayoumi and Thumairy were also repeatedly in touch with Musaed Ahmed al-Jarrah, a key figure in the Saudi religious network who was a senior figure in the Islamic affairs section of the Washington embassy, FBI documents indicate.

Jarrah “had a controlling, guiding and directing influence on all aspects of Sunni extremist activity in Southern California” and “numerous contacts with terrorism subjects throughout the U.S.,” the 2021 report states.

At the Washington embassy, Jarrah also acted as a senior officer of the Saudi intelligence service. He was a close aide to the longtime ambassador, Bandar, and worked for Bandar again after he returned to the kingdom to lead the National Security Council; Jarrah was forced by the FBI to leave the United States because of his suspected extremist ties.

Neither a spokesperson for the Saudi Embassy nor lawyers for the Saudi government responded to questions about the FBI documents’ assertions about the roles of Bayoumi, Sudairy, Jarrah and Bandar.

While the Bayoumi revelations and others might be embarrassing for the Saudi government, it remains unclear why successive U.S. administrations kept so much of the 9/11 investigation secret for so long. As recently as 2020, former attorney general William Barr blocked the disclosure of FBI and CIA documents on the grounds that they constituted state secrets.

Some of those documents were later released under an order that President Joe Biden signed in September 2021, days before the 20th anniversary of the attacks. But some records being sought by the 9/11 plaintiffs are still being withheld, including call logs from a cellphone that Bayoumi is believed to have lent to visiting Saudi operatives.

In response to questions about the 2021 report and the Bayoumi disclosures, the FBI said in an email that it had “nothing to add about the documents released through the Executive Order process.”

Among the many unanswered questions about Bayoumi, Thumairy and others who aided the hijackers, the biggest is who might have organized that effort.

Although the Saudi intelligence services and the kingdom’s religious network sometimes worked in concert, they had distinct agendas. The religious network sometimes acted independently or even at cross-purposes with the government.

Given the abiding mystery over how the CIA lost track of Hazmi and Mihdhar in Malaysia, some former FBI investigators have speculated that Bayoumi might have been asked to approach the hijackers as part of a U.S. or Saudi intelligence operation to recruit them. At the time, former officials have said, the CIA was trying desperately to develop sources inside al-Qaida.

The CIA has long denied that it allowed the hijackers to come into the United States as part of a failed recruitment effort. That theory gained some currency with statements by a former White House counterterrorism coordinator, Richard Clarke, that it was a plausible explanation for the CIA’s failure to track the first two hijackers and its long refusal to alert the FBI to their presence in the United States.

But such a theory does not explain the CIA’s apparent lack of attention to Hazmi and Mihdhar’s whereabouts or Bayoumi’s sometimes disinterested relationship with them.

Whether the answers to such questions might emerge from the federal lawsuit remains to be seen.

Netburn, the magistrate, had notified the plaintiffs that she would only reopen discovery in the case if there were “extraordinary circumstances.” So far, she has not been persuaded that the new information about Bayoumi’s work for the Saudi intelligence agency meets that standard.

The Saudi government, which has long denied that Bayoumi or Thumairy aided the hijackers on behalf of the kingdom, dismissed the plaintiffs’ appeals to reopen discovery as “more of the same.” Starting in the fall, the court will also hear arguments on a motion by the Saudi government to dismiss the case.

“It’s clear from this evidence that Saudi intelligence was at the center of the network that aided the hijackers as they prepared for the attacks that killed my father,” said Peter Brady, the son of a finance executive, Michael G. Jacobs, who died in the World Trade Center. “We urge the courts to allow further inquiry. Our families — and the American public — deserve answers and accountability.”

by Jake Pearson, ProPublica, and Mike Hayes for ProPublica

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As members of the New York City Council convened last month to discuss the Law Department’s budget, they asked the city’s top lawyer to account for the rising cost of police misconduct.

The topic had been driving headlines for weeks. In February, an analysis of payout data had shown that the city shelled out $121 million in NYPD-related settlements and judgments in 2022, a five-year high. Weeks later, officials announced that millions more in taxpayer dollars would go toward what lawyers for demonstrators called a “historic” deal to settle claims involving the NYPD’s violent response to racial justice protests in 2020. Of particular concern to some members of the council’s Committee on Governmental Operations was reporting by ProPublica and New York Magazine on how city lawyers aggressively fight these kinds of misconduct claims, even in the face of compelling evidence that officers crossed the line.

“I found it really troubling,” said Council Member Lincoln Restler of ProPublica’s reporting, which focused on the unit that handles the most high-profile police misconduct cases, the Special Federal Litigation Division, or Special Fed. “And I am concerned about the approach of the Law Department over many years.”

In response, Sylvia Hinds-Radix, the head of the Law Department, told Restler and the committee that she “vociferously” disagreed with any characterization that agency lawyers fought claims tooth and nail “without evaluating what is before us.”

“We have the obligation to defend those things we do,” she said. “And the cases that need to be settled, we evaluate them and settle them.”

Left unmentioned in Hinds-Radix’s March 22 testimony was any reference to Jawaun Fraser, whose case provided an almost textbook example of her department’s hardball approach, a strategy that confounded even the judge overseeing the lawsuit. Just a day earlier, a federal jury in Manhattan had awarded Fraser $2 million after city lawyers spent the previous three years fighting him in civil court.

Fraser had sued New York and three NYPD detectives after spending two years in prison on a robbery conviction that was later overturned. A jury found not just that officers had fabricated evidence against him but that the city itself was liable for massive failures in NYPD training. Yet for years, city lawyers had treated it as what’s called a “no-pay” case, steadfastly refusing to settle while labeling Fraser a “drug dealer” who was unworthy of “a dime.”

They maintained that position even as Fraser’s lawyers revealed numerous inconsistencies and contradictions in the arresting officers’ own testimonies — and as evidence mounted that the NYPD had, for decades, failed to properly train its 35,000-officer force on their legal obligations to disclose certain material, like past lawsuits, that could impact officers’ credibility in court. That violation flew in the face of bedrock legal protections codified by Supreme Court rulings from a half-century ago, beginning with the marquee 1963 case Brady v. Maryland, which requires the government to turn over information favorable to the accused.

Amid the revelations, the senior district court judge overseeing the case took the rare step of declaring that she’d “never understood why this was a no-pay case, and I understand it less now.” The judge, Colleen McMahon, went on to say that in her 22 years on the bench, she’d never seen documentation of the city’s constitutional failures “like the evidence I’ve heard in this case.”

“I am pretty appalled by what I have heard,” the judge said.

A Law Department spokesperson defended Special Fed’s litigation of Fraser’s lawsuit, saying in a statement that after evaluating “all the facts and evidence” agency lawyers “challenged this case all the way to trial.”

“While we are disappointed with the verdict, we respect it,” said department spokesperson Nick Paolucci.

But Thomas Giovanni, who served as a top official in the Law Department from 2014 until last December, said the agency’s police defense practice too often seeks to justify misconduct after the fact, rather than proactively identifying problems, settling them early and pushing its client to reform.

“Are we the oncologist,” he asked of the city lawyer, “or are we the janitor?”

Some civil rights lawyers in the city say the Law Department’s conduct in the Fraser case suggests the latter.

Fraser’s civil lawsuit centered on a botched buy-and-bust operation that NYPD narcotics officers conducted in a Manhattan public housing project on Oct. 21, 2014 — and the lawsuit history of the detectives who played key roles in Fraser’s arrest.

In sworn filings, the police said Fraser confronted an undercover police officer that day, robbing him of a fake New York state license and $20 in drug buy money. Fraser, then 18, denied this, saying that the officer offered up his ID as proof that he wasn’t a cop, and that the detectives framed Fraser for robbery after he merely took a photo of it.

Even though no drugs or buy money were discovered on Fraser that day, he was charged based on the detectives’ claims that he stole the undercover officer’s ID. The case hinged on the officers’ testimony versus Fraser’s, and a jury eventually convicted him of a robbery charge. He was sentenced to two years in prison.

What that jury didn’t know, and what Fraser’s appellate lawyers only discovered years after his conviction, was that six officers involved in his arrest had been named in a total of 35 civil lawsuits. Yet Fraser’s defense lawyer said he only received two cases from a prosecutor ahead of trial — a lack of disclosure that would later prompt a judge to overturn Fraser’s conviction in 2019. The following year he filed a lawsuit in civil court seeking accountability — and compensation — for the actions of the NYPD detectives who had put him behind bars.

In her opening statement last month, though, Special Fed attorney Caroline McGuire’s pitch to jurors was that Fraser was actually guilty of the robbery and was now trying to “trick you into awarding him money.” She pointed to comments Fraser had made to a parole board in which he appeared to accept responsibility for his “crime” — a position Fraser said he only took after older inmates counseled him to express remorse if he wanted to get paroled.

McGuire argued that Fraser had been lucky to get his conviction overturned, going so far as to say that his own defense lawyer was partly at fault for the whole ordeal because he hadn’t looked up lawsuits against the officers “despite the fact that it would have taken him only five minutes.”

McMahon stopped her. “My first instruction of law, under the Brady rule, a defense lawyer has no obligation to look for lawsuits,” the judge explained.

“You had better watch it,” she warned McGuire.

After the city lawyer finished, the judge went even further, excusing the jury and summoning to the podium the chief of Special Fed, Patricia Miller, who was watching from the gallery.

“Ms. Miller, do you have an explanation for why one of your assistants would come into my courtroom and suggest that a defense lawyer has an obligation to go look up material that he doesn’t have any obligation under Brady to look up?” she asked.

Miller told the judge that McGuire hadn’t intended to mislead the jury and was in fact trying to make a point about the relevance of the lawsuits — an argument McGuire’s co-counsel then reiterated. But the judge rejected the city’s position entirely: “I’m here to tell you what came out of Ms. McGuire’s mouth was not permissible,” McMahon said.

Over the next week, Fraser’s lawyers pointed out multiple inconsistencies in the various police accounts of Fraser’s arrest, casting doubt on the official narrative of events. Among them: The undercover officer claimed that Fraser had stolen his ID, but no officer testified seeing a detective recover it from Fraser. In fact, only a photocopy of it was later submitted as evidence.

Fraser’s lawyers also elicited testimony that went to several officers’ credibility, showing that the undercover officer and another detective had never told the prosecutor in Fraser’s case about a combined eight lawsuits they’d been named in, which alleged false arrest and other civil rights violations, and which settled for $246,500 in total. (The district attorney’s office, which has its own obligation to search for such material, also conducted an incomplete search in Fraser’s case, failing to turn up all the lawsuits the office knew about, a prosecutor testified in Fraser’s civil trial.)

As it turned out, the NYPD itself had for decades failed to train its employees on their legal duties to inform the people they arrest of important information that might help their cases. Thousands of pages of internal training materials turned over in the Fraser case revealed that it wasn’t until 2014 — 51 years after Brady was decided and only after New York’s highest court affirmed that records of civil lawsuits had to be turned over — that the NYPD put in writing officers’ disclosure obligations. And even then, the department at first mischaracterized them, not clarifying its instructions until 2017 to include not just information which could exonerate an accused person, but also material that goes to officers' own credibility, such as civil lawsuits.

The failure of basic disclosure became all the more remarkable when Fraser’s lawyers learned that the department maintained an extensive database of civil lawsuits against officers — though it would remain largely inaccessible to the cops referenced in it, as well as to prosecutors.

A top NYPD lawyer in charge of the database testified that officers and assistant district attorneys interested in finding out about lawsuits could email her. To raise awareness about its existence, she started giving oral presentations to cops about their obligations to know their lawsuit histories beginning in 2014, instructing them about “Googling yourself.”

The supervisors who received those training sessions were then supposed to tell rank-and-file officers at roll calls ahead of their tours about their legal responsibilities, the NYPD lawyer said on the stand, a scenario that Judge McMahon likened to the 1980s police procedural “Hill Street Blues.”

“I’m flabbergasted by what I have heard in the last two days, I got to tell you, I’m flabbergasted,” McMahon said on March 17.

In response to all this, Special Fed’s closing arguments to the jury were fairly straightforward: If they believed that Fraser had committed the 2014 robbery, and thus hadn’t been framed, the rest was moot. To bolster their position, the attorneys returned to Fraser’s two parole board appearances in 2017 and his comments there, including what seemed to be an acknowledgement that he was dealing drugs on the day of his arrest.

By his own admission, Fraser had as a teenager sold crack. But he maintained at his civil trial that he’d given up the trade by the time of his arrest and was proud to have landed a job as a sheet metal union apprentice.

The jury believed Fraser, and after the weeklong trial deliberated for about a day before finding unanimously in his favor.

The city’s approach to the Fraser case may now cost taxpayers more than double what they would otherwise have been liable for.

Two years before the jury verdict, Fraser’s lawyers say, they offered to put the matter to rest for $1.6 million, inclusive of attorneys fees. “From then until time of trial, they told us they had no interest in discussing settlement,” said Joel Rudin, one of Fraser’s lawyers. When he asked his adversary at Special Fed why, the answer that came back was revealing. According to Rudin, the city lawyer said he had been told that “higher-ups had made a decision it was a no-pay case,” and that the NYPD “didn’t want to settle.”

While the NYPD can offer its opinion on proposed settlements to city lawyers, former Special Fed attorneys say the decision to offer a deal is exclusively theirs — and the city charter gives the city’s chief financial officer, the comptroller, the ultimate authority on whether to cut checks. (The Law Department did not address ProPublica’s questions about the settlement discussions in Fraser’s case.)

With attorneys’ fees, the total city cost in Fraser’s case could now jump to $4 million, including a total of $425,000 in punitive damages assigned to three officers in the case.

The NYPD did not say whether the detectives have faced any internal disciplinary action or changes to their duties. In a statement, a department spokesperson said officials are “disappointed in the verdict, and remain committed to meeting our disclosure obligations.” The police and law departments also noted that the NYPD has enhanced its efforts to raise awareness around discovery rules in the past decade and took steps to ensure that disclosures are “complete and timely.”

As for its approach to civil litigation, the Law Department “takes seriously its obligation to carefully evaluate the merits of each case and challenge claims at trial as necessary,” the agency spokesperson said.

But to Fraser’s lawyers and others in the city’s civil rights bar, Special Fed’s posture — and its apparent deference to the NYPD — helps enable the kind of police misconduct at the heart of cases like Fraser’s. A report released this month by the city comptroller found that the NYPD accounted for a third of all tort payouts citywide last fiscal year and that its settlement costs — $237.2 million — were the highest among all city agencies.

“There’s still this kind of dismissive approach” in the NYPD about being sued, said Michael Bloch, another of Fraser’s attorneys. “And that is a really fundamental problem that, unfortunately, I think is going to continue to result in people like Jawaun being falsely convicted of crimes.”

Indeed, the verdict in Fraser’s case also exposes the city to additional liability in future cases involving NYPD officers’ failure to turn over impeachment material. (Fraser’s lawyers have already identified at least three convictions that were overturned in recent years because of such disclosure failures.)

Meanwhile, prosecutors are also dealing with the fallout from the civil case.

Given the finding that the undercover officer and another detective had fabricated evidence in Fraser’s case, a spokesperson for the Manhattan District Attorney’s Office said officials in a post-conviction review unit are examining current and past cases that have relied on the officers. Defendants in about 20 open cases brought by the city’s Special Narcotics Prosecutor are being notified of the jury’s verdict, and officials in that office are reviewing past cases as well, a spokesperson there said.

Both officers are still on the job. A lawyer for their union didn’t respond to questions.

For his part, Fraser said measuring cost is harder than tallying amounts on a verdict sheet. The whole ordeal forced him to leave New York, which he said is no longer “my happy place,” and where he is wary of the police. He now lives in quieter surroundings in suburban New Jersey. He has no plans to return to the city that he called home before he was imprisoned.

But the worst part by far was losing those formative years with his children. From his son’s first day of day care to his daughter’s first song and dance at school, these are times with his kids that he said he can never get back.

“Sometimes the kids don’t remember it, but I don’t even have that memory to tell them about it,” he said. “Because we didn’t get to do it, because I was incarcerated.”

by Topher Sanders and Dan Schwartz, ProPublica, and Joce Sterman, Gray Television/InvestigateTV; Video by Scotty Smith, Gray Television/InvestigateTV; Photography by Jamie Kelter Davis for ProPublica

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Jeremiah Johnson couldn’t convince his mother to let him wear a suit, so he insisted on wearing his striped tie and matching pocket square. It was picture day and the third grader wanted to get to school on time. But as he and his mom walked from their Hammond, Indiana, home on a cold, rainy fall morning, they confronted an obstacle they’d come to dread:

A sprawling train, parked in their path.

Lamira Samson, Jeremiah’s mother, faced a choice she said she has to make several times a week. They could walk around the train, perhaps a mile out of the way; she could keep her 8-year-old son home, as she sometimes does; or they could try to climb over the train, risking severe injury or death, to reach Hess Elementary School four blocks away.

She listened for the hum of an engine. Hearing none, she hurried to help Jeremiah climb a ladder onto the flat platform of a train car. Once up herself, she helped him scramble down the other side.

ProPublica and InvestigateTV witnessed dozens of students do the same in Hammond, climbing over, squeezing between and crawling under train cars with “Frozen” and “Space Jam” backpacks. An eighth grade girl waited 10 minutes before she made her move, nervously scrutinizing the gap between two cars. She’d seen plenty of trains start without warning. “I don’t want to get crushed,” she said.

Jeremiah Johnson and his mother, Lamira Samson, climb over a parked freight train on their way to school.

Recent spectacular derailments have focused attention on train safety and whether the nation’s powerful rail companies are doing enough to protect the public — and whether federal regulators are doing enough to make them, especially as the companies build longer and longer trains.

But communities like Hammond routinely face a different set of risks foisted on them by those same train companies, which have long acted with impunity. Every day across America, their trains park in the middle of neighborhoods and major intersections, waiting to enter congested rail yards or for one crew to switch with another. They block crossings, sometimes for hours or days, disrupting life and endangering lives.

News accounts chronicle horror stories: Ambulances can’t reach patients before they die or get them to the hospital in time. Fire trucks can’t get through and house fires blaze out of control. Pedestrians trying to cut through trains have been disfigured, dismembered and killed; when one train abruptly began moving, an Iowa woman was dragged underneath until it stripped almost all of the skin from the back of her body; a Pennsylvania teenager lost her leg hopping between rail cars as she rushed home to get ready for prom.

In Hammond, the hulking trains of Norfolk Southern regularly force parents, kids and caretakers into an exhausting gamble: How much should they risk to get to school?

One child helps another cross over a parked freight train blocking their route to school.

The trains, which can stretch across five or six intersections at a time in this working-class suburb of 77,000, prevent students and teachers from getting to school in the morning. Teachers must watch multiple classrooms while their colleagues wait at crossings; kids sit on school buses as they meander the streets of an entirely different city to be dropped off a half-hour late. Brandi Odom, a seventh grade teacher, estimates that at least half her class is delayed by trains multiple times a week.

The adults entrusted with their safety — parents and teachers, police and fire officials, the mayor — say they are well aware of the pressures on students’ minds when they face a blocked crossing on foot. They know some are hungry and don’t want to miss breakfast; the vast majority in this 86% Black and Latino district qualify for free or reduced-price meals at school. And they know that many of their parents commute to work an hour away to Chicago, trusting older brothers or sisters to pick up or drop off their siblings.

“I feel awful about it,” said Scott E. Miller, the superintendent. His district has asked Norfolk Southern for its schedule so that the schools can plan for blockages and students can adjust their routines. The company has disregarded the requests, school officials said.

Mayor Thomas McDermott Jr. said that his experience with the rails has been similar, and that company officials have reminded him the rails “were here first,” running through Hammond before it was even a city. “To them, I am nobody,” he said. “They don’t pay attention to me. They don’t respect me. They don’t care about the city of Hammond. They just do what they want.”

In written responses to questions, a spokesperson for Norfolk Southern said children climbing through their trains concerns the company.

Watch the InvestigateTV Report “Railroaded”

“It is never safe for members of the public to try to cross the cars,” spokesperson Connor Spielmaker said. “We understand that a stopped train is frustrating, but trains can move at any time and with little warning — especially if you are far from the locomotive where the warning bell is sounded when a train starts.”

He said trains routinely sit in Hammond for a number of reasons: That section of track is between two busy train intersections that must remain open; Norfolk Southern can’t easily move a train backward or forward, because that would cut off the paths for other trains, which could belong to other companies. And Hammond is a suburb of Chicago, which is the busiest train hub in the nation, creating congestion up and down the network.

He said Norfolk Southern is working to identify an area where trains can stage further down its line and to have less impact on the community. The company will also review its procedures to see whether its trains can give louder warnings before they start moving. (ProPublica reporters witnessed trains in Hammond start moving without warning.) Spielmaker said that train schedules vary so much that giving Hammond one might not be helpful. He said that the company is in “constant communication” with local officials, and that representatives will discuss any proposed fixes with Hammond.

Rail companies around the country could better coordinate their schedules, parking trains far from schools that are in session. They could also build shorter trains that fit into railyards so their tail ends don’t block towns’ crossings. Hammond essentially serves as a parking lot for Norfolk Southern’s trains, creating a problem so pressing that Indiana plans to spend $14 million — about $10 million of which is coming from federal grants — to build an overpass for cars. The bridge won’t help many students, who would need to walk at least a mile out of their way just to reach it. Norfolk Southern, the multibillion-dollar corporation causing the problem, is contributing just $500,000 of the bridge’s cost, despite the city asking for more.

Norfolk Southern did not respond directly to questions about whether it should chip in more to the upcoming project, but the company said it contributes to many safety projects and maintains more than 1,600 grade crossings in Indiana alone. Read the company’s full response here.

A coupler connects the freight cars of a train parked in Hammond.

On three separate occasions during the fall and winter, reporters witnessed Norfolk Southern trains blocking intersections leading to an elementary, a middle and a high school for four, six and seven hours. ProPublica and InvestigateTV showed footage of kids making the crossing, including an elementary student crawling under a train, to representatives of Norfolk Southern, lawmakers and Secretary of Transportation Pete Buttigieg, whose remit includes rail safety.

He was shocked.

“Nobody,” Buttigieg said, “can look at a video with a child having to climb over or under a railroad car to get to school and think that everything is OK.”

The video also stunned state officials who had long known about the problem. “That takes my breath away,” said Indiana state Rep. Carolyn Jackson, who represents the Hammond area and has filed a bill attempting to address blocked crossings every session for the past five years. None has ever gotten a hearing. “I hope that they will do something about it and we won’t have to wait until a parent has to bury their child.”

The blocked crossing problem is perennial, especially in cities like Hammond that are near large train yards. But in the era of precision scheduled railroading, a management philosophy that leans heavily on running longer trains, residents, first responders, rail workers and government leaders told ProPublica it is getting worse as trains stretch farther across more intersections and crossings. “The length of the long trains is 100% the cause of what’s going on across the country right now,” said Randy Fannon, a national vice president of the Brotherhood of Locomotive Engineers and Trainmen. “No engineer wants to block a crossing.”

The Federal Railroad Administration, the agency that regulates rail safety, started a public database in late 2019 for complaints about blocked crossings and fielded more than 28,000 reports of stopped trains last year alone. Among them were thousands of dispatches from 44 states about pedestrians, including kids, crossing trains. Someone in North Charleston, South Carolina, summarized the situation in three letters: “Wtf.”

A rail administration spokesperson said the agency shares the data monthly with companies. “When railroads fail to act quickly,” and if a crossing is reported as blocked three days in a calendar month, officials will contact a company to determine the cause and try to work out solutions, Warren Flatau said. “We are receiving various levels of cooperation … and welcome more consistent engagement.” Read more about what the agency says it is doing here.

Buttigieg said that this spring or summer, he expects to announce the first grants in a new U.S. Department of Transportation program designed to help alleviate blocked crossings. The federal government is putting $3 billion into the program over five years.

Two children on their way to school help each other over a parked train.

State lawmakers have tried to curb blocked crossings by restricting the lengths of trains. Since 2019, in Arkansas, Iowa, Kansas, Georgia, Nebraska, Virginia, Washington, Arizona and other states, lawmakers have proposed maximum lengths of 1.4 to about 1.6 miles. (There is no limit now, and trains have been known to stretch for 2 or more miles.) Every proposal has died before becoming law.

Opponents, including the nation’s largest railroad companies, claim that the efforts are driven by unions to create jobs and that the measures would violate interstate commerce laws. As ProPublica has reported, train length has been essential to creating record profits for rail companies in recent years.

The industry has also sued to block more modest measures. In Hammond, for instance, police used to be able to write tickets for about $150 every time they saw a train stalled at a crossing for more than five minutes. Instead of paying the individual citations, Hammond officials told ProPublica, Norfolk Southern would bundle them and negotiate a lower payment.

“We weren’t getting anything,” McDermott, the mayor, said, “but it made our residents feel good.” An Indiana court took the industry’s side — as many courts in other states have done — ruling that only the federal government held power over the rails. “We can’t even write tickets anymore,” the mayor said. “It was more of an illusion, and we can’t even play the illusion anymore.”

He said the blockages have forced Hammond to keep more firefighters and stations than would normally be needed for a city its size. “I have to have a firehouse fully staffed on both sides of the rail line so that we can respond in a timely manner to an emergency, which is very expensive,” McDermott said.

The problem has become so endemic in Hammond that getting “trained,” or stalled at crossings, has become a verb.

Police officers are delayed several times a day, said Hammond Police Department spokesperson Lt. Steve Kellogg. Last October, an officer couldn’t get backup as he confronted a man who was holding a knife, bleeding and not responding to commands. The officer pulled his weapon and the man ultimately cooperated, but someone could have died, Kellogg said. Hammond’s powerlessness over the rails is frustrating, he added. “They’re all controlled by the feds, and they do whatever the hell they want to do.”

Spielmaker, the Norfolk Southern spokesperson, said: “We work with first responders on a daily basis to assist however we can. For example, there was a situation in Georgia where a train was stopped on a crossing due to a broken down train ahead. The train could not be moved, so we worked with the first responders to make sure the train was safe for them to maneuver through with it in place.”

In his 24 years fighting fires in Hammond, Mike Hull, president of a local union, said not once has he seen railroads do that for first responders. “They’ve never come back and said, ‘We’re going to move this train for you,’” he said.

State and local officials grew hopeful on March 20 when the U.S. Supreme Court invited the federal government to comment on a petition from Ohio seeking the authority to regulate how long a train can block a crossing. The high court will likely hear the case if the solicitor general recommends it, said Tom Goldstein, publisher of SCOTUSblog, which is widely seen as an authority on the court. Nineteen other states have signaled their support for a Supreme Court case. Goldstein expects the solicitor general to respond in November or early December. A favorable court opinion could allow other states to finally enforce their laws on blocked crossings.

In the meantime, Buttigieg believes federal lawmakers must intervene to give the Federal Railroad Administration the power to compel rail companies to keep crossings clear. This time of intense public interest in railroads has opened a window for action, Buttigieg said, but it is fleeting. “Any moment that the public attention starts to fade, the railroads are then once again in a position to assert themselves in Washington and to ignore some of the phone calls they are getting in the communities,” he said.

Buttigieg said his staff is ready to participate in a federal hearing in which it can tell lawmakers what new authorities they would need to regulate blocked crossings.

U.S. Rep. Sylvia Garcia, D-Texas, said she is eager for new law. A fire chief in her district, which covers parts of the Houston area, told her the department has had to detour 3,200 times since 2019 because of blocked crossings. She and other congressional Democrats introduced the Don’t Block Our Communities Act in early March, but it has not yet gained bipartisan traction. The proposed law would prohibit rail companies from blocking crossings for more than 10 minutes and would allow the rail administration to fine companies for repeated violations.

Like the other officials, Garcia said she was aghast, but not surprised, about the situation in Hammond. “That is outrageous, look at the little bitty baby,” she said while watching a video of a young girl crawling under a train car. “That’s what I mean about making sure we do more to protect the safety of our children. That happens too in Houston.”

A girl crawls under the train with her backpack. (Gray Television/InvestigateTV)

Watch video ➜

In Hammond, a public meeting is scheduled for Wednesday at 5:30 p.m. at Scott Middle School to discuss the overpass project. Among those who hope to voice their concerns about the blocked crossings are rail workers themselves who worry about the kids. “It’s just a matter of time until there is a catastrophic incident,” said Kenny Edwards, the Indiana legislative director for the nation’s largest rail union.

Efrain Valdez, president of the parent teacher association, said he hopes officials can adjust plans to help students who need to walk to school. “To see our children in danger like that, that’s just downright crazy,” he said. “I’m just appalled and heartbroken that [the railroad] would think that’s OK. That their money means more to them than a child’s life.”

Until there's a better solution, the ritual continues. Some parents act as de facto crossing guards, standing beside trains to help their children and others cross. Others ask their kids to call them before and after they make the climb, while warning them about the worst that can happen.

Rudy Costello tells his daughter, who is in high school, to be careful, because if the train moves she “could slip and then there goes your leg and your foot. Or you get pulled under the train and there goes you all together.” He added: “That’s been my biggest fear, her foot slipping off. … But what can you do? Because those trains are always stopping over there, for hours.”

Akicia Henderson said she has tried to avoid making the dangerous climb with her 10-year-old daughter. “I called a Lyft,” she said. “The Lyft driver actually canceled on me twice because he couldn’t get around the train.”

So she walks toward the tracks, picturing all that can go wrong — a jacket snags, a backpack tangles, the wheels begin to turn. She prays that this will be one of the days their path isn’t blocked and that she doesn’t hear the sound she has most come to fear, a horn in the distance.

“It’s like, ‘Oh my God, the train is coming.’”

Akicia Henderson and her daughter, Sarai Washington

Do Blocked Railroad Crossings Endanger Your Community? Tell Us More.

Ruth Baron and Gabriel Sandoval contributed research.

Correction

April 26, 2023: This story originally misstated the title of Randy Fannon. He is a national vice president of the Brotherhood of Locomotive Engineers and Trainmen, not its general chairman.

by Scott Pham for ProPublica; Ken Ward Jr., Mountain State Spotlight; and Joel Jacobs, ProPublica

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

State environmental regulators have a trove of data on coal mines, including their histories, ownership and environmental violations. ProPublica and Mountain State Spotlight obtained this information for West Virginia and Kentucky, which together are home to about half of the nation’s coal mines. We then combined the states’ data with court records of coal industry bankruptcies. The result was a new look at the association between bankruptcy and environmental problems.

Residents of coal mining communities have warned that environmental problems at mines that have gone through bankruptcy often worsen over time, leading to polluted streams as well as flooding and landslides. We wanted to find out how the compliance record at bankrupt mines compared to other operations. We found that mines that have been through multiple bankruptcies in the past decade had a higher median number of environmental violations than nonbankrupt mines. We shared our findings with independent experts and insiders, who said the results provided meaningful new information about the relationship between bankruptcy and environmental damage.

Data Sources

In West Virginia, the Department of Environmental Protection provides a public dashboard with mining permits and violations. Kentucky’s Energy and Environment Cabinet maintains a Surface Mining Information System with details on mining permits and violations. These dashboards are useful for exploring individual mines, but they do not provide data in a format that can be used for a systematic analysis. ProPublica and Mountain State Spotlight received the underlying data from both states in October 2022 in response to public records requests.

In both states, companies obtain separate permits for each mine they operate. The data analyzed for West Virginia includes all coal mining permits with inspections at any point since 1990 and all violations issued since then. The Kentucky data includes information on all coal mining permits and violations issued since the year 2000; data prior to 2000 was not provided because of data quality issues. For both states, we obtained and analyzed data for permits whether or not the mine is currently active or was ever cited by state inspectors.

The data from both states includes a mining permit’s identification number that was tracked across owners, and which we used as our main unit of analysis. In Kentucky, the permitting data showed the owner at any given time, even if it changed hands. In West Virginia, the permitting data did not specify when a permit changed owners, but it did list the owners at the time of each inspection. Changes in those listings enabled us to determine when ownership changed.

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Two federal agencies, the Office of Surface Mining Reclamation and Enforcement and the Mine Safety and Health Administration, also maintain data on mines, including limited information on certain environmental violations. However, we found that environmental violations are most comprehensively recorded in state mining data. OSMRE data was useful in clarifying mine ownership in some cases.

We created a database of coal mining companies that went through bankruptcy between 2012 and 2022. We identified bankruptcy cases using a list compiled by S&P Global Market Intelligence, and supplemented it with those companies’ subsidiaries and affiliates from relevant court filings. The resulting list encompassed 63 bankruptcy cases, comprising more than 1,100 corporate entities. We then matched this list with environmental citations from state permitting data.

Identifying Bankrupt Mines

Our analysis categorized mines as having gone through bankruptcy or not. A company’s bankruptcy filings do not always specify on a permit-by-permit basis which mines it owned at the time. We identified mines as having gone through bankruptcy if the owner of the mining permit also appeared as a parent company or subsidiary in our bankruptcy list at the time the bankruptcy was declared.

Matching the permittees to the names in bankruptcy filings was complicated by the numerous ways that a company name can be recorded. An entity named “Mining Company,” for instance, could be entered as “The Mining Company,” “Mining Co.,” “The Mining Co. Ltd,” “Mining Company Limited” and so on. To unify these data sources, we employed a machine-learning utility called csvdedupe, made by Dedupe.io. The algorithm was specifically designed to connect variations of names for the same entity.

Each name match was reviewed by reporters; any differences beyond abbreviations or punctuation were further confirmed by reviewing ownership data from OSMRE. We also identified a handful of matches by reviewing corporate structures and name changes recorded in the OSMRE data. It is possible that our method failed to identify some bankrupt mines, if the owner’s name was not matched by the algorithm or identified in our searches of the OSMRE database.

Our analysis was limited to permits for surface and underground mines. It excluded a small number of permits in each state where the data indicated that mining operations had never started. States also issue permits for other facilities such as coal preparation plants and coal slurry impoundments, which can be associated with significant environmental problems. However, of the other types of permits issued, only preparation plants were defined the same way by both Kentucky and West Virginia, and they accounted for a small percentage of permits overall. We decided to limit our comparison to mines and not other kinds of properties mining companies might own.

All violations were counted equally in our analysis. That’s because determining the severity of a violation would require reviewing narrative details of hundreds of thousands of environmental citation records. The violations are issued by the states’ environmental protection agencies and can involve a variety of infractions. The most common involve environmental issues such as water pollution and sediment control. Some less common types of violations, such as failure to maintain proper insurance and signage, may not directly cause environmental damage, but can have ramifications for safety and surrounding communities.

Blackjewel mines were defined as those owned by Blackjewel at the time of the bankruptcy. Some have since been sold.

In calculating the median number of violations for mines that have gone through multiple bankruptcies, we decided to include all violations throughout a mine’s history, regardless of the owner at the time of the violation or whether the violation occurred before or after the bankruptcy. We didn’t make any distinction, because an environmentally troubled mine could be more likely to end up in bankruptcy, or bankruptcy proceedings could exacerbate a mine’s environmental issues.

Our analysis found that surface and underground mines that have gone through multiple bankruptcies in the past decade had a higher median number of environmental violations than nonbankrupt mines. We focused on the median number of violations, not the mean, because a small number of mines had a very large number of violations, which could have skewed the results.

In Kentucky, mines that have gone through multiple bankruptcies in the past decade had almost twice the median number of environmental violations as those that have not gone bankrupt... (Source: ProPublica and Mountain State Spotlight analysis of Kentucky EEC mine permit and violation data. Note: Includes all coal mining permits and violations issued since the year 2000.) …And in West Virginia, they had almost one-and-a-half times as many. (Source: ProPublica and Mountain State Spotlight analysis of West Virginia DEP mine permit and violation data. Note: Includes all coal mining permits with inspections at any point since 1990, and all violations issued since then.)

In both states, the median number of violations among mines that have gone through at least one bankruptcy was higher than those that have not gone through bankruptcy, and lower than those that have gone through at least two bankruptcies. The number of violations per mine is not comparable between states. Each state’s department uses different processes to impose violations for mines. In addition, the time periods analyzed for the two states are different.

Of the 210 bankrupt Blackjewel mines in our database, including 197 in Kentucky and 13 in West Virginia, almost half have gone through at least two bankruptcies. The vast majority of those — 101 of 103 — are in Kentucky.

In Kentucky, Blackjewel mines that have gone through at least two bankruptcies had a median of 16 environmental violations, more than twice the rate for nonbankrupt mines in the state. (Source: ProPublica and Mountain State Spotlight analysis of mine permit and violation data. Note: Blackjewel mines were defined as those owned at the time of the bankruptcy.) Limitations

In preparing our analysis, we shared our results with bankruptcy experts, former industry officials and environmental advocates. Experts generally endorsed our methodology and said our findings were noteworthy, and also emphasized areas where more research is needed. But they also cautioned that many factors other than bankruptcy could affect the environmental record for a mine. The size of a mine, its age, its production capacity and even the geographic area where it was located all could factor into its tally of environmental violations.

Mining companies are usually required to remediate, or “abate,” environmental violations they cause; in some cases the process takes months or years. Future research could delve into how long it takes for environmental violations to be fixed at bankrupt mines, though doing so would present some challenges. It is often unclear from the data when a particular violation was abated, if ever. Additionally, mine operators can appeal certain violations and fines, and in those cases it cannot always be determined from the data if those appeals were successful, were dropped or are still pending.

Alex Mierjeski contributed research. John Templon contributed data reporting.

by Ken Ward Jr., Mountain State Spotlight, and Alex Mierjeski, ProPublica, with data analysis by Scott Pham for ProPublica

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

Whenever a hard rain fell on Harlan County, Kentucky, the mud, rocks and debris from the Foresters No. 25 mine pounded down the hillside into the community of Wallins Creek.

Local residents repeatedly complained about washed-out culverts and mud in their yards. Time after time, county work crews came out after a heavy rain to repair Camp Creek Road, a water line that runs alongside it and a local bridge. The strip mine’s owner, Blackjewel, fixed some problems, but when the rains came again, so did the muddy flooding.

Amber Combs, who lived down the hill from Foresters, recalled a day in August 2017 when "the water was rushing down and the yard was a muddy slush pond. It was literally like a river around my house." Combs complained to Kentucky regulators, who fined Blackjewel $1,300, which it never paid. Overall, under Blackjewel’s ownership, Foresters would run up 17 violations and more than $600,000 in unpaid fines.

Runoff from Blackjewel’s Foresters No. 25 mine damaged a road in Wallins Creek, Kentucky, in 2020. (Silas Walker/Lexington Herald-Leader)

Founded in 2008 by West Virginia native Jeff Hoops, Blackjewel grew in just a decade to become the sixth-largest coal producer in the U.S., partly by accumulating mines like Foresters that had gone bankrupt. By 2018, it boasted more than 500 mining permits in Kentucky, Virginia, West Virginia and Wyoming. Then, in July 2019, Blackjewel stunned the industry by declaring bankruptcy, with claims against it later estimated at $7.5 billion.

That December, environmental groups where Blackjewel operated warned the bankruptcy judge that, while he was focusing on what they called the company’s “significant financial mismanagement,” he should also be aware of “severe environmental mismanagement problems.”

“Reclamation work, water treatment, and other expenses related to environmental compliance should be approved and prioritized” in the bankruptcy case, the environmental advocates wrote.

Kentucky regulators agreed. But, citing longstanding case law, the judge rejected their request. Instead, bankruptcy trustees began divvying up the company’s assets among preferred creditors such as banks and hedge funds. Problems at Foresters and other Blackjewel sites persisted. By mid-2020, there were more than 600 outstanding violations of state mining and reclamation standards at the company’s mines in Kentucky, including 450 since the bankruptcy filing. On top of that, regulators had cited Blackjewel mines for more than 13,000 violations of Kentucky water quality rules, mostly for failing to monitor pollution discharges.

The Blackjewel case, still unresolved and nearing its fourth anniversary this July, highlights the environmental toll of what has become a central feature of the coal industry’s business strategy: bankruptcy. Over the past decade, Blackjewel and other coal companies have found two ways to use bankruptcy to their advantage. First, they expanded their holdings by acquiring other companies’ bankrupt mines, which they hoped would turn a temporary profit during upticks in coal prices and production within the industry’s long-term decline.

Then they declared bankruptcy themselves, entering an arena where they didn’t have to pay all of their debts, and where environmental liabilities took a back seat to banks and other financial creditors. As more coal companies busted, hundreds of mines cycled through repeated bankruptcies. Some, like Foresters, are no longer producing coal, yet they continue to pollute their communities.

Mounds of coal from a Harlan County strip mine stand along Route 119 in Totz, Kentucky, on Nov. 7, 2013. (Luke Sharett/Bloomberg via Getty Images)

A first-of-its-kind analysis by ProPublica and Mountain State Spotlight has documented that mines that have gone through multiple bankruptcies also tend to create more environmental damage. By combining data from federal bankruptcy court filings and state regulatory records, we identified mining permits that have been through more than one bankruptcy and compared the number of environmental violations they’d accrued to violations for mines that had not been through bankruptcy.

We found that the median number of environmental violations for surface and underground mines that had been through multiple bankruptcies between 2012 and 2022 in Kentucky was almost twice the median number for mines that had not, and 40% higher in West Virginia. Blackjewel mines in Kentucky that have gone through multiple bankruptcies had more than twice as many violations as the state median for nonbankrupt mines. Our analysis could not determine if bankruptcy caused the environmental violations or was simply associated with them. Read about our methodology here.

The analysis suggests that the bankruptcy system is “keeping mines alive that are not viable and that are struggling to remain in compliance with environmental laws,” said University of Chicago law professor Josh Macey, co-author of a 2019 study on coal bankruptcies.

Blackjewel’s founder, Hoops, epitomizes how the story of the coal industry and its barons has become inseparable from bankruptcy. He built his empire on bankrupt mines. Then, as Blackjewel’s liabilities mounted, he began seeking new vistas. In the months before Blackjewel’s bankruptcy, according to court records, he transferred tens of millions of dollars into another company that is building a resort in his native West Virginia, part of a broader effort he has described as a noncoal empire he can leave to his children.

Hoops, who declined requests for an in-person or phone interview, said in emailed answers to questions that he didn’t intend for Blackjewel to go bankrupt and that creditors forced him into it. “The model was never to bankrupt the company,” he wrote. “In no way have I benefited from the system.” He added, “I will not recover a cent of my valid claims.” Hoops said that Blackjewel complied with environmental laws and that when violations were issued, it took steps to address them.

Before his bankrupt company left a legacy of mud-shrouded roads and polluted streams, Jeff Hoops was a local hero. He rose from a dysfunctional family and a menial job in the West Virginia coalfields to create a regional economic engine and become a philanthropic pillar of his community.

He and his wife, Patricia Hoops, were all smiles on the front page of the Herald-Dispatch of Huntington, West Virginia, in April 2014 when the newspaper named him its “Citizen of the Year.” The article recounted Hoops’ charity work close to home — a residence hall at Appalachian Bible College in Mount Hope, an indoor football practice facility at the University of Pikeville in Kentucky — and halfway around the world: distributing Bibles in Russia, financing construction of an orphanage in India, running a hotel for missionaries in the Dominican Republic. The children’s hospital in Huntington was named for him, thanks to a $3 million gift. So was a local soccer facility, after what the paper called a “generous donation.”

Jeff Hoops receives the Huntington Herald-Dispatch’s Citizen of the Year award in June 2014, at the Huntington Museum of Art in West Virginia. (Bishop Nash/The Herald-Dispatch via AP)

Despite his wealth and success, Hoops remained the modest and deeply religious man that his friends and neighbors had always known. As a major donor to Marshall University’s Thundering Herd athletic program, he would rate a perch in a luxury box at the stadium. But he said he prefers to sit in the stands, where he can feel the crowd’s energy and be closer to the action.

“I’ve invited him into the box but he says, ‘No, I’m okay,'” said John Sutherland, executive director of Marshall's Big Green Scholarship Foundation.

When Sutherland wants to talk Marshall sports with Hoops, they meet at Shonet’s Country Cafe, a family diner in Milton, West Virginia, for scrambled eggs and sausage, and sometimes a slice of pie.

Born in 1956, Hoops grew up in Bluefield, deep in southern West Virginia along the Virginia border. Bluefield then had 20,000 residents; it counts less than half that many today. Historically, it was a financial hub and railroad center for the coal industry. Now, it promotes itself as “Nature's Air-Conditioned City” (elevation 2,611), and the local chamber of commerce gives away cold lemonade whenever a summer day hits 90 degrees.

Hoops was the second oldest of five children of Roy Hoops, who worked as a clerk for the Norfolk & Southern Railroad, and Lucy Walker. Roy’s drinking, infidelity and physical abuse of Lucy strained the family, according to court records. Lucy filed for protective orders and divorce several times. When Roy promised to change his behavior, they reconciled.

“Certainly my childhood had its challenges, as my father’s life was controlled by alcohol,” Hoops said.

Hoops was a striver. He sang in the youth chorus at church and made the Bluefield High basketball team as a sophomore despite standing 5-feet-1-inch tall. He sprouted to what he called “a towering 5-8” by 1974, when he graduated from Bluefield and married his high school sweetheart, Patricia Johnson, a week later. He wanted to work right away, but he was only 17, and the minimum age in the coal industry was 18. So he altered his birth certificate and found a job running parts in an underground mine, he said.

Hoops in his 1973 high school yearbook (Bluefield High School via Ancestry.com)

In 1975, Hoops joined the engineering department of a mining company, doing surveying and designing ventilation plans. He began going to college at night, eventually earning associate’s and master’s degrees and an executive MBA. Within a decade of high school, he became a top corporate engineer and then vice president of operations for United Coal, which became part of Arch Coal. After leaving Arch in the late 1990s, Hoops established and sold a series of coal companies. A former associate described Hoops as a workaholic driven by a competitive streak. “The joy of his life is coming out on top of a business deal,” the former associate said.

Hoops’ parents divorced in 1985, remarried in 1986 and divorced again in 1991. Roy retired from the railroad and owned an Exxon gas station from 1983 to 2002. On his deathbed in 2014, he called his son to apologize. “I forgave him, told him I loved him, and told him the most important thing was for him to make peace with God,” Jeff Hoops recalled.

When Hoops was growing up, coal was the most powerful business and political player in places like southern West Virginia and eastern Kentucky. But then, buffeted by skyrocketing natural gas production, cheaper renewable energy prices and efforts to reduce greenhouse gas emissions, the industry began to founder.

Makers of everything from asbestos to opioids have used bankruptcy to avoid paying for damage they caused, but the sheer volume of coal bankruptcies outpaced any other sector. At least 60 coal companies went bankrupt between 2012 and 2022, including some of the biggest in the country. The environmental group Appalachian Voices warned in July 2021 that a wave of bankruptcies could leave 633,000 acres of coal mines in the eastern U.S. in need of cleanup, eroding the ability of communities to rebuild economically.

In theory, bankruptcy doesn’t exempt a company from its responsibility to preserve the environment. The 1977 Surface Mining Control and Reclamation Act requires coal companies to clean up damage as they mine. When mining is over, the land must be put back to “a condition capable of supporting the uses which it was capable of supporting prior to any mining.”

That’s not how it generally works in practice. Coal companies often fall behind on so-called mine reclamation and, with obligations also mounting for worker pensions and health benefits, file for bankruptcy protection. They lay off employees at mines that are no longer productive or profitable, ditch pension and health care liabilities and avoid paying for environmental damages.

For example, coal giants Peabody Energy and Arch Coal created a third company, Patriot Coal, and spun off their mines with environmental problems and pension obligations into it. All three companies eventually went bankrupt, ducking a combined $2.6 billion in liabilities, according to Macey, the University of Chicago law professor. Many of these mines have changed hands since then but still have not been reclaimed.

“Bankrupt coal companies dump their mine cleanup obligations onto communities and taxpayers who simply don’t have the money to pick up the tab,” said Peter Morgan, a Sierra Club lawyer who has tracked coal bankruptcies around the country.

The purpose of bankruptcy is to give desperate people and companies time and relief from creditors so they can get back on their feet. But not all creditors are treated equally. Bankruptcy law gives secured creditors such as banks, law firms, the Internal Revenue Service and equipment suppliers — but not environmental costs or fines — priority for payment.

“Bankruptcy courts are not doing enough to stop conduct that allows coal companies to get out of their environmental responsibilities,” Macey said.

There’s a potential backstop to pay for environmental cleanup: reclamation bonds. Federal law requires coal companies to post these bonds to receive mining permits, as a sort of insurance. The amount that companies are required to put up varies from state to state; in West Virginia, it can be as much as $5,000 per acre of the permit. To secure the bonds, companies pay a surety firm a one-time fee — typically 20% to 50% of the face value, according to Hoops. If a mining company goes belly up, state regulators can revoke its permits and use the bond money to clean up whatever mess is left. Money from forfeited bonds, sometimes along with other revenue such as environmental penalties or coal production fees, goes into state reclamation funds to restore abandoned mine sites.

But the required bond amounts often aren’t enough to cover all potential costs. Cleanup costs have soared, partly due to larger surface mines that blew up or chopped off entire mountaintops, and partly because modern studies have increasingly identified water pollutants requiring lengthy and expensive treatment. According to a 2021 legislative audit, West Virginia’s reclamation bonds have covered only one-tenth of cleanup costs. Separately, the Appalachian Voices analysis projected cleanup costs in West Virginia alone as high as $3.5 billion.

As a result, state officials are reluctant to revoke permits and take on the financial responsibility for cleanup. What often ensues instead is a game of musical mines. Knowing that they won’t end up on the hook for reclamation, other coal companies buy mines out of bankruptcy — and then often go bankrupt themselves.

The ProPublica analysis identified 2,030 mines in Kentucky and West Virginia that have been through bankruptcy since 2012 — more than a third of all coal mines in those states. Of the bankrupt mines, 491, or 24%, have gone through more than one bankruptcy.

Of the 210 bankrupt Blackjewel mines in our database, including 197 in Kentucky and 13 in West Virginia, almost half have gone through at least one other bankruptcy. The vast majority of those — 101 of 103 — are in Kentucky and had a median of 16 environmental violations, more than twice the median for nonbankrupt mines in that state.

Since Blackjewel went bust in 2019, more than 100 of its Kentucky permits have been sold out of bankruptcy — many for the second time, according to court filings. Lawyers jokingly call the second round of bankruptcy “Chapter 22,” or Chapter 11 twice over.

In 1999, Hoops went out on his own with just one mine, the Hunts Branch Mine in Phelps, Kentucky. In 2008, he founded Revelation Energy. It grew, and Hoops changed the name to Blackjewel in 2017 as part of what he called “a strategic restructuring.” The plan was to shift away from providing steam coal for power plants and toward producing more metallurgical coal for steel mills, a market where prices were increasing.

Blackjewel assembled mines from the bankruptcies of James River Coal, Alpha Natural Resources, Arch Coal and others. Alpha paid Hoops $200 million in cash and more than $100 million in installments to take about 250 of its mining permits. Every acquisition “was based on a detailed economic model that demonstrated the mines could make money even in a down market,” Hoops said.

Arch Coal strip mines in Letcher County, Kentucky, in 2013 (Charles Bertram/Lexington Herald-Leader/Tribune News Service via Getty Images)

The strategy, Hoops said, was working. Blackjewel expanded from central Appalachia to Wyoming’s Powder River Basin. It employed 1,700 miners and boasted 1.2 billion tons of coal available for mining, enough to keep going for many decades.

But in April 2019, two bankruptcy experts questioned whether Hoops would be able to honor his companies’ environmental obligations.

“Rather, his businesses have begun to exhibit a pattern,” Macey and Jackson Salovaara wrote in “Bankruptcy as Bailout,” an article in the Stanford Law Review. “Hoops takes over abandoned mines, receives cash from the company that wants to get rid of them, and then fails to actually remediate the environmental problems.”

Three months later, Blackjewel declared bankruptcy. It cited a roof collapse at a Virginia mine, a spike in workers’ compensation costs and flooding that prevented railroads from moving coal out of Wyoming. It also blamed adverse market conditions, including the rise of cheap natural gas, greater use of renewable energy and increased regulatory pressures.

Energy industry researcher Clark Williams-Derry pointed instead to questionable business decisions, such as Blackjewel locking in prices for steel-making coal just before prices increased sharply. “The signs of financial distress have been evident to anyone who cared to look,” he wrote in a blog post titled, “Seven Bombshells in the Blackjewel Bankruptcy.” Hoops said that lenders forced the timing of the price locks on Blackjewel, costing the company millions of dollars.

Hoops said that key lenders — United Bank and the investment firm Riverstone Holdings — cut off credit for Blackjewel, forcing the firm into Chapter 11. “They had managed to get my funds put on hold before and during the bankruptcy, as I would have never allowed the company to file but for their actions,” Hoops said. United and Riverstone declined comment.

In a press release, Hoops portrayed the bankruptcy as part of an effort to “position the company for long-term success.” But it didn’t feel that way to many Blackjewel miners. Some mines closed, sending workers home without any notice, and without their most recent paychecks. A mine in Wyoming was on fire, and Blackjewel was scrambling to pay employees to put it out.

Joseph Fox, who worked at a Blackjewel coal preparation plant in Virginia, had just taken his family on vacation to Myrtle Beach, South Carolina. Then, his paycheck bounced. Fox, his wife and their son and two daughters cut their beach trip short.

“They’re kids. All they wanted was a vacation,” Fox recalled. “They didn’t understand, and you don’t want to be telling them your paycheck bounced.”

In Kentucky, a group of miners who missed paychecks blocked a Blackjewel coal train in Harlan County. Hoops said that all of the miners have been paid. Still, they filed claims and lawsuits alleging that they were laid off without due notice.

Unpaid Blackjewel coal miners, who lost their jobs because of the bankruptcy, block the railroad tracks that lead to the mine where they used to work in Cumberland, Kentucky, in 2019. (Photo by Scott Olson/Getty Images)

The bankruptcy trustee settled the lawsuits with a promise that miners would be bumped up in the ranking of creditors. But court documents suggest there will be little money to go around, maybe only enough to pay the lawyers, accountants and consultants managing the liquidation, lawyers monitoring the case said.

By the time of the bankruptcy, Hoops was already preparing for a future outside coal. He set up a family holding company, Clearwater Investments, with his three sons as trustees. Its purpose was to “leave a financial dynasty to Jeff and Patricia’s heirs by investing in several businesses as well as by collecting royalties on various investment properties,” said an internal “executive overview” filed in the bankruptcy case.

Some of the listed holdings retain a connection to coal, including a trucking firm and a mining equipment sales service. Others don’t, like a wheelchair and brace sales firm with sales in 2018 of $8.7 million.

In January 2019, Hoops sent the Clearwater overview to his sons, Jeffrey Jr., Jeremy and Joshua. “I hope by the end of this year to have a nice package together that shows everything we own as it is a vast company now,” he wrote. “Love you guys …. Dad.”

It didn’t take long for Clearwater to surface in the Blackjewel case.

Creditors discovered that in the six months prior to Blackjewel’s bankruptcy filing, as the company was becoming increasingly insolvent, Hoops had transferred at least $34 million from Blackjewel to Clearwater.

Hoops said that these transfers were appropriate because they represented partial repayment of $51.5 million in loans that he and his family had made to Blackjewel since January 2019 via a revolving line of credit. But this explanation didn’t satisfy creditors, who accused him of violating bankruptcy rules by putting himself at the head of the line.

It was a “sweetheart deal,” then-bankruptcy trustee David Bissett told the judge during a July 2019 hearing. Hoops was “protecting his own self-interest” rather than Blackjewel’s employees or creditors, Bissett said.

Lenders were so outraged at Hoops’ money transfer that, as a condition for providing Blackjewel with emergency financing, they forced Hoops to step down as an officer of the company. They also blocked any Hoops family members from taking a management role.

In a farewell email to employees, Hoops defended himself. “No one is hurting more than me over what has occurred,” he wrote. “There has not been one cent taken out of the mining company, the exact opposite I have loaned more money to try to get this company through these difficult times.”

The email continued: “I accept responsibility for being unable to lead this company through these difficult times.” Hoops wrote, “I know in my heart how hard I fought for each of you and this company and to have people threaten me and say I took money out of this company for other projects hurts more than words can express.”

The liquidation trustee sued Hoops and seven family companies, including Clearwater, over the money he shifted from Blackjewel to them in the months before the bankruptcy.

Last August, the trustee settled these cases. Few details were made public, except that as part of the deal Hoops dropped a $2.6 million claim for money he argued Blackjewel owed him.

Hoops said only that the lawsuit was “resolved amicably.” The liquidation trustee declined comment.

Another bankruptcy court fight focused on the Foresters mine.

This wasn’t the mine’s first brush with bankruptcy. U.S. Coal, its original owner, went bankrupt in June 2014. By the time Hoops took over the permit in 2016, the mine was down to fewer than 20 workers, and production was a third of its 2013 peak of 550,000 tons. In 2018, it stopped producing coal altogether, and had only three employees, according to the federal Mine Safety and Health Administration.

A year into Blackjewel’s bankruptcy, a flood from Foresters eroded part of a local road and damaged a drinking water line. The rest of Blackjewel’s now-idled operations across Kentucky were also polluting their surroundings. Alarmed by the worsening conditions, the state’s Energy and Environment Cabinet sought the court’s help. In June 2020, the environmental regulator asked the judge to order Blackjewel’strustee to bring all of the company’s permits into compliance with mining standards and pollution rules.

In a court filing, agency officials warned that Blackjewel sites not only weren’t being restored to pre-mining conditions but weren’t even being maintained to prevent contaminated water from pouring downstream into water supplies. The agency warned of flooded holding ponds being at high risk of “discharging metals and suspended solids into adjacent rivers and streams” and of landslides “that could endanger the lives and the property of residences below.”

In September 2020, a week after state inspectors again cited Foresters for erosion and drainage, U.S. Bankruptcy Judge Benjamin A. Kahn held a hearing on the regulators’ complaints. But the concerns about environmental fallout ran smack into a wall of decades-old law. While noting that crews were already responding at Foresters and other sites, the bankruptcy trustee argued that legal precedent gave the judge little scope to intervene. The judge agreed. Citing U.S. Supreme Court and federal appeals court decisions, Kahn instructed the trustee to clean up only "imminent” threats to public safety, not “speculative” threats.

Some problems at Foresters met this standard, and Kahn ordered them fixed. Still, violations for muddy runoff and sediment from holding ponds have persisted there.

Kahn deferred action at dozens of other Blackjewel sites with hundreds of environmental violations that he deemed less severe. Kahn’s analysis didn’t address the risk that if bankrupt mining companies can avoid routine maintenance and reclamation, speculative threats can turn imminent in a hurry. Once the judge’s criteria are met, “it’s too late,” said Lena Seward, lawyer for the Kentucky state regulatory agency. “The road is washed out.”

An unreclaimed strip mine on a mountaintop along the Kentucky-Virginia border in October 2014 (David Goldman/AP)

Kentucky also tried to forfeit bonds for some Blackjewel mines so that the state could begin cleanup. But that’s tied up in a legal challenge by the surety company, which contends that it has the right to restore the sites itself instead of losing the bond money. For other mines, the state and the bond company are still working out terms for cleanup.

Meanwhile, the companies that bought most of the mines haven’t gotten very far with cleanup, sometimes because the state blocked final approval of the purchases due to unresolved violations at mines they already owned. Kentucky regulators acknowledged in an email that they “would like to have seen a faster transfer applications/reclamation process.”

As it acquired mines, Blackjewel posted a total of more than $500 million in reclamation bonds in four states. But that sum may not be enough. State regulators warned the bankruptcy judge in late 2020 that, for the 32 Blackjewel mines without buyers, conditions had deteriorated so much that cleanup costs were estimated at $20 million more than the bonds would cover.

Hoops disputed that the bond amounts were inadequate. The regulators were “wrong,” he said, but he did not elaborate.

In February 2021, the Kentucky cabinet went back to the judge. A Blackjewel mine was showing severe erosion, with sediment ponds so full that they posed what an inspector called “an immediate danger to the public and environment downstream.”

Kahn ruled against the regulator again.

“The violations just continue to mount,” said Kentucky attorney Mary Varson Cromer, who represents coalfield residents in the Blackjewel case. “The whole system is not functioning, and it ends up costing more to reclaim, and it’s the residents and the community that are at risk.”

The game of musical mines is slowing down. Across Appalachia, coal production is forecast to drop more than 20 percent over the next decade. In a market where coal production and prices continue to drop, there’s little demand for Blackjewel’s coal. Almost all its mines in Kentucky, including Foresters, have been sitting idle for four years.

Blackjewel’s case has also bogged down in paperwork, or the lack of it. “The books and records inherited by the trust were woefully incomplete (and largely nonexistent in some instances),” the trustee complained in March 2023, explaining yet another delay.

With Blackjewel behind him, Hoops is looking to the future. Clearwater is building a resort in Milton, where Hoops lives. The project is meant to invoke the splendor of ancient Rome. Hoops named it the Grand Patrician Resort. Patrician has a double meaning: It refers to the ruling class of ancient Rome and also honors Hoops’ wife, Patricia.

Patricia and Jeff Hoops speak at a press conference announcing the Grand Patrician Resort in Milton, West Virginia. (Sholten Singer/The Herald-Dispatch via AP)

Hoops wept as he announced the resort project, which is located on the site of a former children’s hospital. His aunt and his brother-in-law had both been patients there, he told a local newspaper. “I get emotional,” he said. “To see God take something that was used to treat kids that were hurting, a lot of them crippled for life, he always takes something bad and turns it for good.”

The resort’s golf course had a soft opening last August. Construction of a luxury hotel continues. Local press accounts say the site will include a 400-seat steakhouse, a wedding chapel and ballroom and two indoor pools. A second phase is expected to feature another hotel, equestrian trails and a 3,500-seat outdoor arena modeled on the Roman Colosseum. This month, Hoops hosted a ribbon-cutting ceremony for a new hiking trail at the resort.

Even though Hoops left Blackjewel four years ago, one of his family-run businesses is still connected to its mines. The insurance company holding the reclamation bonds for the Blackjewel mines that weren’t bought out of bankruptcy has hired Lexington Coal to reclaim them. Its manager is one of Hoops’ sons. Lexington Coal “has not benefited in any way economically” from the reclamation contract, Hoops said.

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Joel Jacobs and John Templon contributed data reporting.

by Ryan Gabrielson

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One morning in September 2017, Judge Christopher Plourd opened an unusual hearing at the Imperial County Superior Courthouse, a half-hour north of the California-Mexico border. It involved three illegal drug possession cases that were unrelated to one another.

Each of the cases had relied on the results of chemical field test kits used by corrections officers at nearby state prisons. The kits indicated crumbs and shreds of paper that guards found on the inmates contained heroin and amphetamine. But a state forensic laboratory later analyzed the debris utilizing a far more reliable test and found no trace of illegal drugs. The defendants were factually innocent.

Rather than simply close the cases, defense attorneys asked the court to determine whether the NIK Public Safety brand field tests used in California’s prisons were too unreliable to show to grand jurors. In effect, they put on trial the evidence most commonly used to secure convictions in drug cases in the U.S.

Plourd ruled in early 2018 that the test kit “does not meet a scientific admissibility standard” and therefore “does not support the grand jury indictment.”

In other words, the tests were guilty.

The Imperial County cases are believed to be the first time a judge blocked field tests from contributing to indictments. In the years since, defendants and inmates in multiple states have scored additional legal victories against agencies using the kits and the companies selling them.

“For years, these tests have had this unjustified scientific veneer,” said Des Walsh, founder of the Roadside Drug Test Innocence Alliance, which advocates for the use of more accurate testing technology. “Finally, we believe the tide is turning with this dawning awareness of the unacceptably high rate of false positives.”

In a 2016 series of stories, ProPublica documented law enforcement’s widespread use of field tests to make arrests and secure convictions despite serious flaws. No government agency regulates their use. The officers who perform the tests to make arrests on the street often have little or no training in their use.

Since then, the new court rulings have contributed to a growing movement to change the way drug cases are prosecuted in America. Courts across the country have long known that field tests are error prone and require forensic laboratories to confirm the results for jury trials. However, nearly all drug convictions in the U.S. come by plea deals during initial hearings, where chemical kits are the primary evidence of guilt.

Courts have overturned 131 drug convictions in the past 10 years after laboratory analysis determined the alleged drugs were legal substances, according to a database maintained by the National Registry of Exonerations. A large majority of those wrongful convictions originated in Harris County, Texas, where the crime lab analyzed its backlog of suspected drugs from closed cases and discovered the evidence in hundreds of convictions did not contain drugs. The defendants in those cases had pleaded guilty at preliminary hearings.

The tests are small plastic pouches holding vials of chemicals. They’re cheap, roughly $2 apiece, and easy to use. Officers open the pouch and add the substance to be tested. The tests are designed to produce specific colors when mixed with drugs like heroin, cocaine or methamphetamine. But dozens of items, including foods and household cleaners, trigger similar reactions.

During the Imperial County hearing, an executive at the Safariland Group, the nation’s largest field test manufacturer, testified the company keeps a list of more than 50 legal substances that cause positive results. Court records show chocolate sometimes turns the liquid a similar shade of green as heroin in the NIK kits.

Safariland Group did not respond to a request for comment.

More evidence of the tests’ inaccuracy came in October 2021, when former inmates filed a class-action lawsuit against the Massachusetts Department of Correction. The prisons used test kits on all incoming mail, including letters from attorneys. When correspondence tested positive, inmates were sometimes put in solitary confinement and lost eligibility for parole. The lawsuit alleged that the prison system’s use of field tests violated the inmates’ right to due process.

Court records show that between August 2019 and August 2020, lab analysis found that 38% of the inmate mail that tested positive did not contain the alleged drug. Shortly after the inmates filed their lawsuit, Suffolk County Superior Court Judge Brian David ordered the Correction Department to immediately stop using the chemical kits until the litigation was finished.

In the order, David characterized the NARK II brand kits used in Massachusetts’ prisons as “arbitrary and unlawful guesswork.”

The inmates are also suing Sirchie Acquisition Co., manufacturer of the NARK II kits, and Premier Biotech, a retailer that sells them, in federal court for negligence, alleging the companies misrepresented the kits’ risk of false positives and provided inaccurate instructions to the state prisons. In September, a federal judge ruled that field test sellers can potentially be held liable for harm caused by erroneous results. Both of the lawsuits are ongoing.

Sirchie did not respond to ProPublica’s request for comment. Sirchie, Premier Biotech and the Massachusetts Correction Department have denied the inmates’ claims in court records.

Compounding field tests’ inherent flaws, police officers and prison guards rarely understand how the kits work, according to court records and interviews.

During the hearing in Imperial County, multiple guards testified about the training they received on the field tests and how they described the results to grand jurors. David Eustaquio, an officer with the California Department of Corrections and Rehabilitation, told the court he had used the chemical kits more than 200 times during his career, according to transcripts. He said he’d never had to explain the results beyond saying the color change meant the test was positive for an illegal drug.

“Do you know what the accuracy rate is for these NIK tests?” Kelly Jafine, an Imperial County deputy public defender, asked Eustaquio.

“No, I do not,” he said.

Jafine then asked if the prison had taught him about false positive results during training on the chemical kits.

“No,” Eustaquio answered, “I was not.”

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by Kathleen Sharp for ProPublica

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Stepping into the Metropolitan Museum of Art, Shyanne Beatty was eager to view the Native American works that art collectors Charles and Valerie Diker had been accumulating for nearly half a century. But as she entered the museum’s American Wing that day in 2018, her excitement turned to shock as two wooden masks came into view.

Beatty, an Alaska Native, had worked on a radio documentary about the two Alutiiq objects and how they and others like them had been plundered from tribal land about 150 years ago. Now, the masks were on display in the biggest and most esteemed art museum in the Western Hemisphere. “It was super shocking to me,” she said.

The Met’s ownership history for the masks, also known as provenance, omits more than a century of their whereabouts. Historians say the masks were taken in 1871. But the museum’s timeline doesn’t start until 2003, when the Dikers bought them from a collector. Ownership was transferred to the Met in 2017.

The Dikers, who have amassed one of the most significant private collections of Native American works, have been donating or lending objects to the Met since 1993. In 2017, as other institutions grappled with returning colonial-era spoils, the Met announced the Dikers’ gift of another 91 Native American works.

A ProPublica review of records the museum has posted online found that only 15% of the 139 works donated or loaned by the Dikers over the years have solid or complete ownership histories, with some lacking any provenance at all. Most either have no histories listed, leave gaps in ownership ranging from 200 to 2,000 years or identify previous owners in such vague terms as an “English gentleman” and “a family in Scotland.”

Charles and Valerie Diker attend the 2017 Guggenheim International Gala in New York City. (Evan Agostini/Invision/AP)

Experts say a lack of documented histories is a red flag that objects could have been stolen or may be fake.

“That’s a lot of missing documentation, which is a problem,” said Kelley Hays-Gilpin, a curator at the Museum of Northern Arizona. The Arizona museum has documented about 80% of its collection, as has the Brooklyn Museum and other institutions that are considered less prestigious than the Met but that have substantial Native American collections. Some museums, such as one at the University of Denver, decline gifts that have poor provenance.

For centuries, Native Americans have decried the looting of the graves of their ancestors by pothunters and scientists and the display of their remains and belongings in museums. In 1990, Congress passed the Native American Graves Protection and Repatriation Act to facilitate the return of such items and human remains to the appropriate tribes, which the law declares are their rightful owners.

NAGPRA requires federally funded museums to notify a tribe within six months of receiving their holdings by contacting and consulting with that tribe’s chosen representative, often known as a Tribal Historic Preservation Officer, and giving them an opportunity to reclaim their objects. The law also mandates that museums file a copy of those notices with the National Park Service.

These interactions provide an opportunity for institutions to learn more about the history of objects, whether they are authentic or might have been stolen and if it’s appropriate to display them. But as ProPublica has reported this year, museums have often delayed such discussions while keeping human remains and objects that the law says should be returned.

Some pieces in the Diker Collection are sacred, such as a shaman’s rattle made of human or horse hair; some are funereal and were buried with the dead. (The Met recently returned the rattle to the Dikers, and there are “ongoing consultations” related to some other items, according to the museum.)

“Most of these items could only have ended up in private hands through trafficking and looting,” said Shannon O’Loughlin, director of the Association on American Indian Affairs, which advocates for tribal sovereignty and the protection of Native American cultures.

“The way that so many of these things wound up in museums is horrible,” said Rosita Worl, president of Sealaska Heritage and a Tlingit citizen. New York law goes by the principle of once stolen, always stolen, and she said the pieces are tainted. “The rightful thing is for these things to be returned home.”

Initially, many of the objects were loans; due to a loophole in NAGPRA, this meant the museum did not have to report them to tribes or to the NPS. To date, the museum has accepted the transfer of 77 of the promised gifts from the Diker Collection, according to the Met.

But ProPublica found that after assuming ownership the Met for years failed to consult the necessary tribal officials in a timely and consistent manner about objects in its collections. A year passed before the museum contacted someone at the Alutiiq tribe to inform them that it had their masks. (The Met declined to name the person it contacted.) Four years later, the NPS posted summaries that the Met had sent in September 2022 to 63 tribes connected to objects in the Diker Collection. The Met did so after ProPublica asked the museum about the masks and other sacred and culturally sensitive items.

All the while, the museum displayed some items with incorrect descriptions and omitted or minimized the wars, occupations, massacres and exploitation that dominated the tribes’ past.

The Met’s descriptions in its displays “are in the land of make-believe,” said Wendy Teeter, the former curator at the Fowler Museum at the University of California, Los Angeles. “The public won’t have a clue as to what a piece really is or how it got there.” This, Teeter said, “perpetuates stereotypes and bias against Native people.”

The Metropolitan Museum of Art’s land acknowledgement plaque

Dan Monroe, who helped draft NAGPRA and is a former director of the Association of Art Museum Directors, said the long delays in notifying tribal representatives and the NPS are a violation of the law: “They have a responsibility to follow the law and are subject to fines if they don’t.”

In a written statement, the museum said: “Although some progress has been made in updating the online catalog information and providing more complete provenance information, we recognize there is still much work to do and that this is an ongoing process that requires relationship building, patience, and great care. This is important work, and it is precisely one of the intentions of the Dikers to have a large, well-resourced institution such as The Met devote the time and scholarship to these Native items.”

The museum also stated that it is misleading to use “complete ownership histories as a standard for judging a collection,” noting that much of the Diker collection has previously been exhibited and researched by other major U.S. museums. “When new information about collection items comes to light, we openly share it (if advised by Indigenous leaders to do so), or remove culturally sensitive items from view as requested.”

Get updates about ProPublica’s investigation into the delayed return of Native American human remains.

During its investigation, ProPublica asked the Met to comment on statements about the collection. Some sources who had made on-the-record statements that were shared with the museum by ProPublica later asked to withdraw their statements. One indicated that they’d been contacted by a Met employee. (The Met said it constantly engages with a wide range of professionals and did not exert any pressure on sources for this story.)

The Dikers declined interview requests. In a written statement to ProPublica, they said: “For nearly 50 years, inspiring appreciation for the arts of Native America has been our greatest passion.” The couple also said that they had assessed “all available information relating to provenance” before acquiring the works.

If a museum can prove it has legal title, meaning that the object’s creator, their descendents or a tribal representative willingly transferred the piece, the museum doesn’t have to return an item. But if a tribal officer requests the return of an item, a museum must comply, unless it can prove it’s part of the chain of ownership, ideally going back to its origin. Complicating matters, thousands of Native American pieces at the Met have been in its collection since 1889, an era when many museums didn’t track the ownership histories of such works.

Questions about the legitimacy of the Met’s ownership of artwork extend beyond its American Wing. As part of a sweeping investigation into the trafficking of antiquities, the Manhattan District Attorney’s office has issued nine warrants over the past five years to seize about three dozen looted artifacts at the Met, as well as computers, memos and other material related to the objects.

Matthew Bogdanos, an assistant district attorney in Manhattan who leads the office’s antiquities trafficking unit, said he and his team found the sales histories of the seized antiquities were either fraudulent, incomplete or nonexistent. The D.A.’s office looked at filing charges for criminal possession of stolen property. “But their actions didn’t cross the threshold of ‘beyond a reasonable doubt,’” Bogdanos told ProPublica, so no charges were filed.

Patricia Marroquin Norby was hired in 2020 as the Met’s first full-time curator of Native American art. (Jeremy Dennis/The New York Times via Redux)

The Met said in its statement that it drafted a new Native American Arts Initiative in 2021 under the guidance of its “first-ever” curator of Native American Art Patricia Marroquin Norby (Purépecha, an indigenous community in Mexico). The initiative, said the museum, includes “creating an advisory committee and hiring a full-time staff position that will collaboratively focus on NAGPRA responsibilities and further prioritize the building of ongoing partnerships as well as the strengthening of community collaborations.” In March, the Met said it was also hiring a Native American art researcher whose responsibilities will include “some provenance research.”

What follows are the stories behind several Indigenous pieces that the Dikers have loaned or given to the Met. ProPublica interviewed experts and cultural officers at the affiliated tribes to learn how some of the Diker Collection objects survived brutality, theft and exploitation, little of which the visitors who pay to see them learn about from the museum.

Alutiiq Masks, 1870

Given to the Met in 2017

Alutiiq triba representatives told ProPublica it is appropriate to show an image of a mask. (The Charles and Valerie Diker Collection of Native American Art)

The two carved masks that Beatty was shocked to see at the exhibit’s opening still hang in the museum. A description of them on the Met’s website says that “spirits communicate with people through whistling: these masks may be the faces of such supernatural beings.”

They may be sacred. But that’s only part of the story.

The Alutiit have lived on the Aleutian Islands in southwest Alaska for 7,500 years. In winter, people would once huddle indoors and create utensils, clothes and ceremonial objects. Using beaver-tooth tools, they would carve wood faces, painting them blue, green and red and adorning them with feathers and fur.

At a preordained time, the Alutiit would don their masks and dance and sing in ritual, said April G.L. Counceller, director of the Alutiiq Museum & Archaeological Repository in Kodiak, Alaska. A lot of the masks’ power was tied to those who had passed, she said: “For other ceremonies, the masks were a way to communicate with spirit helpers.” After the ceremony, people would hide the masks in caves to let the “sky creatures'' rest until the next rite.

In 1740, Russians invaded the area for its sea otter fur. They forced Alutiiq males as young as 12 to hunt and held Alutiiq women as ransom. People died of starvation, disease and abuse. After a century, the sea otter population had nearly collapsed, and the Russians left. The U.S. then arrived and set up schools that punished Native children for speaking their language. By the 1890s, the population of the Alutiit had dropped by 90% to 1,500.

Museums rushed to grab what was left of Alaskan cultures. When a Western Union expedition headed north, the Smithsonian Institution’s assistant manager, Spencer Baird, made sure that 20-year-old William Dall was on board to “salvage” tribal objects. Baird paid Dall $200 a year ($7,000 in today’s dollars) to ship his hoard to the museum. Baird also used “salvagers” on Army expeditions, Navy cutters and other quests, acquiring tens of thousands of pieces. The Met obtained Tsimshian rattles and Tlingit reed pipes from donors around this time.

A reburial ceremony in the Kodiak City Cemetery, where the Sun'aq tribe choose to lay to rest their ancestors. The remains being reburied were repatriated from Michigan State University, returned by the Alaska State Museum or collected from private land where they were unearthed during recent construction. (Courtesy of the Alutiiq Museum)

“Almost everything that wasn’t nailed down or hidden was taken away,” said Worl, the Sealaska Heritage president.

The Met said it has provided “updated summaries to Alaskan Native communities” and “the Tsimshian and other Northwest Coast communities are on our list to receive new collection NAGPRA summaries.”

Alphonse Pinart (National Library of France)

In 1871, 19-year-old Alphonse Pinart of France arrived. He spent months paddling a skin-covered kayak along the 600-mile Kodiak archipelago, stopping at islands where he found caves. Inside those caves, Pinart unearthed graves and helped himself to human remains, funeral items and masks, according to his journals.

That November, he stayed on Kodiak Island and learned the masks were used in Alutiiq rituals; he got to watch some ceremonies and published a paper about his findings.

After six months, he shipped the masks home to Pas-de-Calais and left. Before he died in 1911, he donated 87 artifacts to a small museum in a castle near Calais. They sat forgotten by the Alutiit for seven generations.

The Met’s provenance only lists owners from the past 20 years. The Dikers purchased the two masks in 2003 and donated them to the Met in 2017. The museum filed a summary with the NPS listing them in 2022, five years after the deadline.

The museum stated that in 2023, “it was recommended that the masks remain on view to provide community access.” Tribal members who live where the masks were made must travel 3,500 miles to reach the New York museum.

Apache Quiver and Arrows, 1875

Loaned to the Met in 2018

A White Mountain Apache tribal official told ProPublica the quiver and arrows might be funereal. Out of respect, the full image is not depicted.

In 2019, the Met displayed this bag of arrows with a placard reading: “The painted and beaded patterns on this quiver symbolizes protective sacred powers.”

This description indicates the object is holy and, out of respect, should not be displayed, said Ramon Riley, the cultural resource and NAGPRA representative for the White Mountain Apache Tribe in Arizona. “But I need to see the documents showing how they escaped from their home,” he said, meaning their provenance.

The Met lists no such history. And because the Dikers loaned the quiver set to the Met in 2017 and didn’t transfer title to the museum, the Met wasn’t required to inform tribes that it possessed the item.

For the Met to list the piece merely as “Apache” shows a lack of due diligence, as there are more than 10 Apache tribes. If Met curators had contacted any of those tribes, they might have learned which group created the items. These pieces have a history that should be respected, said Riley: “The set could have been looted or taken at gunpoint.”

After U.S. Army Gen. William Tecumseh Sherman recommended slaughtering buffalo to deny Native Americans a food supply, the number of buffalo killings skyrocketed. Here, buffalo skulls are piled up at a glueworks in Rougeville, Michigan, in 1892. (Burton Historical Collection, Detroit Public Library)

In the 1870s, one of the more ruthless leaders in U.S. military history, Gen. William Tecumseh Sherman, was pursuing the Apaches. During the Civil War, he had burned Atlanta. As commanding general of the Army and director of the Indian Wars, he was using similar scorched-earth methods, including devising the slaughter of 5 million buffalo to starve Native Americans.

Sherman (Mathew Brady Photographs of Civil War-Era Personalities and Scenes/National Archives Catalog)

At the time, the U.S. was planning its first world’s fair: the Centennial International Exhibition of 1876 in Philadelphia. The Smithsonian was asked to create an Indian “artifact” gallery to rival the antiquities in European museums.

In 1873, the Smithsonian’s director, Joseph Henry, wrote Sherman: “We are desirous of procuring large numbers” of Native American “dress, ornament, weapons.” He asked Sherman to tell his soldiers to send “specimens” from the battlefield. At Sherman’s request, Henry paid each uniformed “picker” up to $500 (the equivalent of $14,000 today).

The plan helped produce one of the fair’s more popular exhibits, which included Apache arrows. When the expo closed, Henry’s deputy packedthe collection onto 48 rail cars bound for Washington, D.C.

By 1878, the demand for “Indian” items had grown so large that the Smithsonian asked the public to unearth “American Aboriginal” artifacts from mounds, caves and cemeteries. Soon, the spoils of war and grave robbing filled America’s new museums like the Met, but few items had documentation or provenance.

Ramon Riley, the cultural resource and NAGPRA representative for the White Mountain Apache Tribe (Tomás Karmelo Amaya, special to ProPublica)

Riley learned this while searching for the remains of his clan relative. His ancestor worked as an Army scout, carrying a government-issued rifle and his own bow and arrows. But during a massacre he was arrested for mutiny and hung, said Riley. The scout was buried with his possessions. Days later, his body was dug up and displayed in a cabinet inside Fort Grant, in what was then the Arizona Territory. Eventually, his remains were shipped to the Smithsonian.

Riley doesn’t think his relative’s quiver set was displayed by the Met; he believes that the set in the Diker Collection is a funerary item. “But to people like the Dikers, it’s all art,” he said. “It’s crazy.”

In March, after ProPublica had asked about it, the Met said it had been made aware that the quiver-and-arrow set was “potentially culturally sensitive” and had removed it from public display. The loaned item has not yet been returned to the Dikers.

Lakota "Model Tipi Cover," 1875

Given to the Met in 2018

Rosebud Sioux tribal officials told ProPublica it is appropriate to show an image of the tipi. (The Charles and Valerie Diker Collection of Native American Art)

When the Met displayed this item in 2019, the placard read: “During early reservation life, Plains people created objects such as this for sale to visiting military personnel, government officials” and “missionaries.”

“Sale?” said Peter Gibbs, an archivist in the Rosebud Sioux tribe’s historic preservation office. “The museum has got it wrong.”

Smithsonian Institution assistant manager Spencer Baird paid for the “salvage” of tens of thousands of items. (William Bell/Smithsonian Institution Archives)

What really occurred is that an “Indian Ring” of agents and politicians were taking bribes from people who wanted to do business on reservations. In 1886, the government hired a bankrupt 52-year-old from New York, L.F. Spencer, as an Indian agent.

Spencer arrived during hard times at the Rosebud reservation in what is now South Dakota. The U.S. sought to control the tribe by sending its children to the notorious Carlisle Indian Industrial School in Pennsylvania, where they endured harsh labor and abuse, sometimes leading to their death. The government stopped providing rations to parents who refused to give up their children.

Spencer befriended Spotted Tail Jr., son of Chief Spotted Tail, who held some of the tribe’s communal items, including the painted tipi. After Spotted Tail died in 1888, Spencer claimed the chief had signed an undated will giving Spencer many items, including the “great medicine pipe of the Sioux nation.”

Gibbs believes the will is a fraud. The pipe had been handed down to Spotted Tail by his father and his grandfather. “Junior would never have passed this pipe on to Spencer, nor the tipi,” Gibbs said. Spencer’s dishonesty was so well known that the Indian Rights Association urged the Army to fire him.

Chief Spotted Tail, center, with his sons, enrolled at the Carlisle Indian Industrial School in Pennsylvania (Carlisle Indian School Digital Resource Center)

In 1889, Spencer gathered his haul and left. Back in New York, he lectured to parlor clubs about his “Wild West” exploits, showing off the tipi and other items.

After Spencer died, his daughter, Harriet Lund, bequeathed some of his spoils to relatives and to an unspecified museum. In 1963, Spencer’s granddaughter Vivian Backen sold Spotted Tail’s will and other items to a Denver art dealer, according to Spencer’s descendant Dick Miller. Correspondence between Backen and the Denver art dealer supports that history.

But the Met’s provenance doesn’t list these names. The art dealer sold a tipi from Spencer’s cache to the Denver Art Museum for $500, or about $5,000 today, even though it had mildew rot and patched holes.

In 1965, a curator at the museum sold the tipi. The Met’s record says the buyer was Larry Frank of New Mexico. After Frank died, the Dikers bought it in 1989. In 2018, they gave it to the Met, where it was displayed in pristine condition.

The Met has described it as a souvenir. But Ben Rhodd, the Rosebud Sioux tribe’s then-cultural officer, said it had another purpose entirely. The tipi shows triumphant warriors on horseback, holding up shields that represent their male societies. It was an educational tool meant to instill pride in Lakota children for their relatives’ achievements — and to teach them how to erect a tipi, he said.

“This inaccuracy is the result of a lack of consultation,” Rhodd told ProPublica. “And I think the piece has been looted.”

It’s been five years since the Met accepted this gift, and tribal officials say they still haven’t heard from the museum. The item is no longer on display; the Met said it intends to contact the tribe and file a summary as part of “our ongoing NAGPRA work.”

Hopi “Polacca Polychrome Water Jar” by Nampeyo, 1895

Given to the Met in 2017

Hopi tribal officials told ProPublica it is appropriate to show an image of the jar. (The Charles and Valerie Diker Collection of Native American Art)

“Nampeyo was the first Southwest potter to become recognized by name outside her Hopi community and is renowned for her technical skills and aesthetic sensibility,” states the Met’s website. She was also one of the first Native American women to control her own work by selling directly to buyers.

The Met’s history of the jar is missing dates, but there’s enough documentation to show it was probably obtained legally. It’s an example of a commercial work of art in the Diker Collection that is appropriate to display. (In its statement, the Met said it “recognizes the sensitivity of some items in its historical Native American collection” and as a result is prioritizing the acquisition of “more modern and contemporary works by Indigenous artists.”)

In 1874, Nampeyo was a shy 15-year-old who sometimes wore a traditional manta, a type of shawl. A surveyor snapped her picture, which wound up on ads to lure tourists to the Arizona Territory. Unwittingly, Nampeyo became an iconic image of the Southwest.

Hopi artist Nampeyo holds one of her works of pottery. (Carl Moon/The Miriam and Ira D. Wallach Division of Art, Prints and Photographs: Photography Collection, The New York Public Library.)

It was a mixed blessing, said Leigh Kuwanwisiwma, a former Hopi Tribal Historic Preservation Officer. For centuries, the Hopi have lived on remote mesas that tower more than a mile over the surrounding landscape, allowing them to freely practice their language, religion and culture.

In the 1880s, however, a flood of dignitaries, artifact “pickers” and scholars arrived to glimpse the Hopi’s “exotic” culture. Seeing an opportunity, an old soldier from Kit Carson’s Army brigade, Thomas Keam, set up a trading post near the mesas. He plundered graves and ruins for pots and jars to sell.

In 1889, Keam sold 3,000 Hopi pieces to the Smithsonian for $10,000 — or $350,000 today. When Keam ran out of plundered pots, he turned to Hopi women, including Nampeyo, to produce them. Her mother was a Tewa, her father a Hopi, and she’d grown up near an abandoned ancient village. Playing with designs, Nampeyo made pots with yellow-orange clay and painted figures on them using black, red and white mineral pigments. Then, she polished the surface to a high sheen.

Keam sent some of her pieces to the World's Columbian Exposition held in Chicago in 1893. Collectors took notice, and Keam sold them her work. According to some scholars, Nampeyo received a fraction of the profits. By the late 1890s, she was selling directly to customers.

An ex-mayor of Chicago, Carter Harrison Jr., acquired one of Nampeyo’s works. The burnt-amber pot had a stylized face of a dancing kachina. In the 1930s, Harrison gave the object to his men’s club named the Cliff Dwellers. It sat in the foyer for decades.

The Met’s provenance description of the Nampeyo jar (Screenshot from The Met’s website)

The Met’s provenance says the piece was sold in 2010 by Bonhams auction house. Bidding was intense. When the gavel came down, the Dikers had bought it for $350,000, a record for Southwest American Indian pottery.

The Dikers gave the jar in 2017 to the Met, where it is currently on display. Since it’s not a sacred or funerary item and was made for commercial use, the museum is not required to file a NAGPRA summary.

“The Objects are Not Well Documented”

Midway through the Diker exhibit’s setup and development, the Met hired some advisers. But this group did not have time to contact the appropriate tribal officers, said one of the advisers, Brian Vallo, the then-director of the Indian Arts Research Center at the School for Advanced Research in Santa Fe and a former governor of Acoma Pueblo in New Mexico. Vallo stressed that he was not a tribal leader at the time but said it was important to educate the Met “on issues of cultural sensitivities and representation.”

(ProPublica spoke to Vallo several times for this story. The Met also invited the news organization to interview him, describing Vallo as an expert in “Native arts and culture” and “familiar with the field.”)

This advisory group learned the Met didn’t have a procedure for properly curating, consulting, documenting and displaying Native American objects. They insisted that the museum hire an indigenous curator.

“The Diker collection is quite beautiful, but many of the objects are not well documented.,” Vallo said. “There needs to be an informed process that should be followed so the museum doesn’t take in items protected by federal laws, including NAGPRA.”

Soon after the Diker exhibit opened at the Met in 2018, O’Loughlin, the Association of American Indian Affairs director, heard complaints about the show from members of her organization. She contacted the curator of the Met’s American Wing, Sylvia Yount, hoping to connect her with cultural officers of the tribes that had made the objects in the collection.

“I offered to bring them to New York so they could give their perspective on the display,” O’Loughlin said, but Yount declined.

Yount said publicly that she had consulted with tribal “leaders.” The museum had hired Indigenous and nonnative academics and consultants — advisers who were not chosen by the tribes to represent them, as required by NAGPRA.

Of the meeting with O’Loughlin, Yount said in a statement that they had a “productive” session in which they discussed the Met’s “ongoing NAGPRA efforts and potential future collaborations.”

As a nonprofit with $5.58 billion in assets, the Met should have hired the staff needed to provide accurate information about its works years ago, experts said. “It could set an example about the importance of combating illegal trade and the need to protect cultural heritage,” said Tess Davis, director of Antiquities Coalition, which fights cultural trafficking. “But it seems they are doing the opposite.”

Tribal members are skeptical of many museums’ willingness to consult with them. As a result, the Department of Interior in January announced proposals to improve NAGPRA by, among other things, emphasizing that museums consult with tribes at every step of the process and defer to the customs and knowledge of tribes and their lineal descendants.

When Riley, of the White Mountain Apache Tribe, learned the Met was displaying the quiver set, he grew upset. “I wanted the museum to take it down, but I didn’t know who to ask,” he recalled.

He understood the limits of NAGPRA, having been rebuffed in a previous attempt to reclaim “four of our sacred objects” held by another East Coast museum. “We had to prove that it belongs to us, that it was stolen and that it should be returned. And the museum didn’t have to prove a thing,” he said.

And those looted masks? In 2002, Sven Haakanson Jr., then-director of the Alutiiq Museum, stumbled upon some of his people’s carvings at the Château-Musée de Boulogne-Sur-Mer in Pas-de-Calais. The French looter Pinart had given the masks to the museum a century earlier. Stunned, Haakanson met the facility’s then-director and spent the next six years cultivating a relationship with the museum. Finally, in 2008 the French shipped 34 masks to the Aluttiq Museum as a temporary loan.

Haakanson mounted a groundbreaking exhibition. “We wanted people to see that the masks were not only striking, but part of an Alutiiq tradition of sharing 7,000 years of history,” he told ProPublica. The exhibit brought some people to tears. “It helped heal the unspoken wounds of the tribe,” he said.

Now, the Alutiit are relearning how to make masks as their ancestors once did.

Such successes inspire Gibbs and the Rosebud Sioux tribe. “There should be a Cultural Repatriation Day when it’s safe for everybody and anybody who has something to give it back to tribes, no questions asked,” he said.

That includes the Dikers, he said, and the Metropolitan Museum of Art.

by Lulu Ramadan and Mike Reicher, The Seattle Times

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

Washington lawmakers voted nearly unanimously Friday to strengthen oversight of private special education schools that serve some of the state’s most vulnerable public school students.

These schools, called nonpublic agencies, received more than $50 million in public funding last school year to serve roughly 500 public school students with complex disabilities. But an investigation by The Seattle Times and ProPublica revealed that weak state oversight had allowed serious problems to fester for years at the largest of the schools in Washington state.

A wide-ranging bill, proposed in response to the stories, passed on Friday and is expected to be signed by Gov. Jay Inslee. It would expand the Office of the Superintendent of Public Instruction’s responsibility to investigate complaints and ensure programs have qualified staff.

The schools are meant to provide individualized curricula to students whose needs are too great to be met in traditional public schools.

The Times and ProPublica reported last year that the Northwest School of Innovative Learning — which operates a network of campuses in Tacoma, Redmond and Tumwater — had faced a steady stream of complaints alleging abuse, misuse of locked isolation rooms to manage student behavior and classes led by unqualified aides instead of certified teachers.

The legislation addresses “a travesty that has occurred” at Northwest SOIL, which served dozens of public school students, Rep. Sharon Tomiko Santos, D-Seattle, who chairs the House Education Committee and authored portions of the bill, said Thursday on the House floor. Students “were not only not receiving special education services, but they were also not receiving their basic constitutional right to an education,” she said.

The legislation would create a centralized repository of complaints against these schools.

For years, school districts across western Washington fielded alarming reports about Northwest SOIL. Though some of these complaints made it to state education officials, many stayed at the school district level, making it difficult for regulators to spot widespread issues.

Fairfax Hospital, the largest private psychiatric facility in Washington, owns Northwest SOIL and defended its program, denying allegations that it misused restraint holds or skimped on staffing.

Following The Times and ProPublica’s reporting, OSPI launched an investigation into Northwest SOIL in January. The state requested a trove of records and set deadlines in February and March. As of April, however, the inquiry is ongoing, and the state is still collecting documents from the private school, according to OSPI.

In a statement to the news organizations last week, the agency noted that the information it requested covers several years through the present and that the probe may include interviews and on-site visits. “It is our priority to fully understand the scope of the concerns being raised and assess the responses from the three NW SOIL campuses in order to identify appropriate next steps,” the agency said in a statement.

The bill, SB 5315, also requires these private schools to report police incidents to school districts and OSPI. Currently, there is no explicit requirement that the schools report police investigations. State officials said they were unaware of several police investigations at Northwest SOIL until The Times and ProPublica reported on allegations that one teacher choked students and another dragged a boy across a classroom.

“We all agree that there needs to be a tighter rein and more accountability for these schools, for vulnerable students,” said Sen. Claire Wilson, D-Auburn, who filed the legislation at the request of OSPI. The House passed the bill unanimously, while the Senate passed the bill with just one vote against it.

Currently, these private schools are subject to few state requirements. OSPI reviews annual applications that include staff lists and certification details. But the programs do not have to provide a specific curriculum or employ more than one special education teacher.

The legislation would tighten oversight, requiring annual visits and contracts with school districts that detail education plans and curriculum. It would also require more staff training at the private schools.

Some school districts accused Northwest SOIL of billing for services it never provided, including one-on-one aides. In 2021, the school’s top administrator reported to a school district that Northwest SOIL skimped on qualified staff, curriculum and basic education tools so Fairfax Hospital’s multibillion-dollar parent company, Universal Health Services, could increase profits.

Fairfax Hospital denied the allegations that it cut corners on education and staffing in a past statement to The Times and ProPublica. UHS said it had no comment beyond Fairfax’s statement.

Fairfax also did not respond to a request for comment on the legislation when it was first filed in January.

“We want to make sure we can get that public money back if schools are accused of overbilling and not providing services,” said Rep. Travis Couture, R-Allyn, who said his caucus pushed for the financial accountability provisions in response to The Times and ProPublica’s reporting.

Wilson said there was broad agreement over the need to strengthen oversight and accountability, but the House and Senate versions contained some small differences that had to be worked out. The bill passed with just two days left in the legislative session after a last-minute debate among lawmakers and ultimately included provisions suggested by both bodies.

For instance, the original Senate version did not include state auditor oversight, and the House version did not call for a centralized tracking system for complaints. The bill also renames nonpublic agencies as “authorized entities.”

The Washington Federation of Independent Schools, a nonprofit that represents private schools, worked with Wilson’s office on the legislative language. Many of the private programs are certified by the state Board of Education, though some are not. Northwest SOIL is among the programs that is not formally certified as a private school.

Suzie Hanson, the federation’s executive director, noted that many certified private schools already offer comprehensive programs. The group supports “whatever the law can do to make sure there is accountability, responsibility and recognition that the work being done is difficult and good and needs to be done by experts and by people who care a lot about making sure students get what they need,” she said.

by Patrick Lohmann, Source New Mexico

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

The wildfire had already burned 160 square miles of northern New Mexico forest last spring when it suddenly surged ahead, reducing to ash the cozy cabin David Martinez had built for himself more than two decades earlier.

Martinez, now 64, had fled days before, one of 15,000 people ordered to leave as the fire spread.

He spent the next three months sleeping near the edge of the fire in his pickup truck, his physical and mental health declining from the smoke, stress and lack of sleep.

Desperate for shelter, he spent $5,000 or so of the emergency aid he’d received from the Federal Emergency Management Agency on a down payment for a late-’90s Vacationaire travel trailer. He placed it on the site of his old cabin in Monte Aplanado, about 35 miles northeast of Santa Fe.

Martinez used aid from the Federal Emergency Management Agency to make a down payment on this late-’90s trailer. The blue truck that he slept in for months is parked out front. (Adria Malcolm, special to ProPublica)

He calls it the “tin can.” Its heater is broken. The cold creeps through its thin walls. Wind rattles the wooden cabinets. But it’s all he could afford.

A year ago, two runaway fires set by the U.S. Forest Service converged to become the Hermits Peak-Calf Canyon wildfire. It rode 74 mph wind gusts, engulfing dozens of homes in a single day as it tore through canyons and over mountains.

The blaze became the biggest wildfire in the continental United States in 2022 and the biggest in New Mexico history. And it was the federal government’s fault: An ill-prepared and understaffed crew didn’t properly account for dry conditions and high winds when it ignited prescribed burns meant to limit the fuel for a potential wildfire.

The U.S. Forest Service uses controlled burns to reduce the threat of wildfires, but two of those planned burns escaped in New Mexico and merged, creating a massive blaze that lasted for months in 2022. (Eddie Moore/The Albuquerque Journal via AP)

By the time the blaze was fully contained in August, it had destroyed about 430 homes, according to the Forest Service. Monsoons helped extinguish the fire, but they spurred floods that caused more damage.

FEMA stepped in to help, offering cash for short-term expenses and, after the state requested it, temporary housing to 140 households. But the federal government has acted so slowly and maintained such strict rules that only about a tenth of them have moved in, an investigation by Source New Mexico and ProPublica has found.

A year after the fire began, FEMA says most of the 140 households it deemed eligible for travel trailers or mobile homes — essentially, people whose uninsured primary residences sustained severe damage — have found “another housing resource.”

What the agency doesn’t say: For some, that resource is a vehicle, a tent or a rickety camper. It’s a friend or relative’s couch, sometimes far from home. It’s a mobile home paid for with retirement funds or meager savings.

The fire upended a constellation of largely Hispanic, rural communities that have cultivated their land and culture in the shadows of the Sangre de Cristo Mountains for hundreds of years. Many residents can find their family names on land grants issued by Mexican governors in the 1830s.

Now they’re dispersed across the region, even out of state. Source New Mexico and ProPublica obtained records from local officials and volunteer groups and eventually interviewed more than 50 people who between them lost 45 homes.

Many of them said FEMA’s trailers were offered too late, cost too much to get hooked up or came with too many strings attached. Several said they went through multiple inspections, only to learn weeks later that one rule or another made it impossible to get a trailer on their land. In some cases, FEMA officials told people that their only option was a commercial mobile home park, miles down winding, damaged mountain roads from the homes they were trying to rebuild.

FEMA placed the trailers on the left in the El Aguila Mobile Park, but the first fire survivor didn’t move in until early November, three months after the program was announced. Several of the FEMA trailers in the park were still vacant as of April 14, 2023. (Adria Malcolm, special to ProPublica)

People who between them lost 17 homes said they withdrew from the housing program because of those problems.

As of April 19, just 13 of the 140 eligible households had received FEMA housing. Only two of them are on their own land.

Martinez said he got a call from FEMA in mid-October, seemingly out of the blue. By then, he had been living in the tin can for a couple of months. As temperatures dropped, he had started sleeping on the couch, closer to the space heater.

A FEMA representative asked if he needed a trailer to live in.

“I told them it was too late,” he said. “Way too late.”

FEMA said terrain and weather, among other factors, presented challenges in providing housing to survivors. But the agency said it made an exception to its rules by providing trailers and mobile homes in the first place — normally such programs are reserved for disasters that displace a large number of residents.

The agency said it tries to place temporary housing on people’s property, but couldn’t in many cases because of federal laws and its own requirement that trailers be hooked up to utilities. State and local officials have asked the agency to loosen its rules, but it hasn’t.

FEMA knows it has a problem with its response to wildfires. A 2019 Government Accountability Office report said FEMA’s housing programs are better suited to help those displaced by hurricanes and floods because some victims can remain in their damaged homes, there’s often more rental housing in those areas and there’s more space for large mobile home parks than there is in the rugged mountains scorched by wildfires.

FEMA agreed with the findings and said it would explore providing housing funding to states because they’re better positioned to guide recovery. That didn’t happen after the Hermits Peak-Calf Canyon fire.

Last month, Martinez woke up on the couch in severe pain from a swollen bladder. Now he needs frequent medical appointments to check his catheter and figure out what’s causing the pain. His sister has been trying to get him a FEMA trailer in a commercial park closer to a clinic in the town of Mora. It’s just 8 miles away, but it can take 45 minutes to drive there.

David Martinez now regularly visits the Mora Valley Community Health Services clinic in Mora, New Mexico, as his health has declined since the fire destroyed his home. (Adria Malcolm, special to ProPublica)

What neither of them knew when he bought that old trailer last summer is that doing so made him ineligible for a FEMA trailer.

Martinez wants to stay on his property if he can. His great-grandfather once owned the land where he built that cabin. He raised his hands to show his stiff, swollen fingers. “They ain’t worth shit now,” he said. “But a man builds his own castle, right?”

The Cost of Free Housing

By mid-June, firefighters had finally started to get the blaze under control, and people were being allowed back into communities in the area known as the burn scar. New Mexico officials turned their attention to those who had nothing to return to.

Kelly Hamilton, deputy secretary for the state Department of Homeland Security and Emergency Management, told FEMA in a letter that people were living in their cars, at work and in churches, in campers and even in tents.

He asked FEMA to provide travel trailers or mobile homes. “If the housing situation is not immediately addressed, the survival of each community is bleak,” he wrote.

A stone chimney is all that remains of a home near Cleveland, New Mexico, after a wildfire set by the U.S. Forest Service burned it down. Many people who lost everything due to the errors of one federal agency have become tangled up in the bureaucracy of another when seeking help from FEMA. (Megan Gleason/Source New Mexico)

He cited an analysis showing there was just one rental apartment available in Mora and San Miguel counties, the two hardest hit by the fire. He noted that roughly 20% of residents in those counties were below the poverty line and that one-third of Mora County residents were disabled, according to U.S. Census Bureau figures.

It took FEMA a month to approve Hamilton’s request and about two weeks more to tell the public. On Aug. 2, the agency announced it would launch a small housing program, which “will likely entail placing a manufactured home on the resident’s property for the length of time it takes to rebuild.”

But there were strict rules for where those trailers could go. Recipients would need to have electrical service, septic tanks and drinking water close to the housing site. The agency’s draft contract for the housing program specified details down to the width of straps that were required to secure trailers against wind.

Blackened metal frames are all that’s left of the solar panels that powered water pumps serving Max Garcia’s farm in Rociada, New Mexico. Garcia stayed behind the fire line and teamed up with neighbors to protect their properties from the wildfire. He and several others saved their houses. (Patrick Lohmann/Source New Mexico)

Local and state officials and disaster survivors told Source and ProPublica that the utility requirements were unreasonable, especially in this area. It’s common for homes to be heated with wood stoves fed with timber harvested from the surrounding land. Some people didn’t have running water or septic tanks even before the fire. Electrical outages were common in remote areas.

Martinez’s cabin never had running water; he got it from his neighbor’s well. So even if FEMA had offered him a trailer earlier, he would have had to pay thousands of dollars to build a well — if he could’ve found someone to do it.

“I’m trying to put this diplomatically,” said David Lienemann, spokesperson for New Mexico’s emergency management department. FEMA is “very efficient in deeming people ineligible.”

The effect of those rules is clear. As of April 19, FEMA said 140 households were eligible for trailers, as determined by the agency’s own inspections and policies. Of those, 123 had “voluntarily withdrawn.”

People dropped out because they “opted to live in their damaged homes, located another housing resource or declined all Direct Housing options,” said FEMA spokesperson Angela Byrd in an email. “However, those households remain eligible for the program should their situation change.”

FEMA wouldn’t allow Vicki Garland to connect a trailer to her solar panels, which weren’t touched by the flames. Instead, the agency insisted that she connect to the power grid, which would’ve cost her about $20,000. She’s now moving to the outskirts of Albuquerque, about 140 miles away.

Six individuals and families said they left the program because it would’ve cost too much to hook a trailer up to electricity, restore their wells or meet other utility rules.

Emilio Aragon was living in his office when he was told he was third on the list for a FEMA trailer. After waiting six months, he gave up and spent his retirement savings on a mobile home. He was among six individuals and families who said they were offered housing too late or faced delays that forced them to find housing on their own.

In response to those accounts, FEMA said in a written statement that it must ensure housing is safe and secure. “Generally, this is not a fast process because it requires us to be so thorough and meticulous. Working during the monsoon season meant it took additional time to make sure these sites were safe.”

FEMA has had a hard time getting people into temporary housing quickly after disasters. After Hurricane Ida struck Louisiana in 2021, FEMA said its housing program “is not an immediate solution for a survivor’s interim and longer-term housing needs” because it takes months to get sites ready. The agency praised Louisiana’s decision to launch its own federally funded housing program alongside FEMA’s.

A few months after the storm, The New York Times reported, the state’s program had housed around 1,200 people in about the same time it had taken for FEMA’s program to house 126.

Because FEMA’s housing programs end 18 months after a disaster declaration, every delay runs down the clock. Unless the Hermits Peak housing program is extended, it will expire in November, when the next winter is approaching.

The Sangre De Cristo mountains are covered in trees that were charred by the Hermits Peak-Calf Canyon fire, which burned an area the size of Los Angeles. (Adria Malcolm, special to ProPublica)

FEMA declined to say whether it would extend the program, saying it would work with the state to meet survivors’ needs.

Wesley Bennett and his wife, JoDean Williams Cooper, said they went through three inspections to see where a trailer could be placed on their property. No spot was suitable, and they were instead offered a site at a mobile home park. Five other individuals and families said they pulled out of the housing program because of the red tape.

FEMA has noted that nine households declined to live in a mobile home park. Several of the trailers it has installed at those sites stand empty.

Some survivors, including Bennett and Cooper, said it wasn’t feasible to live in a trailer park an hour away from the homes they were rebuilding, especially with so many roads washed out by the flooding that followed the fire. They needed to stay on their land to take care of crops and deter theft.

“People who have largely lived in a rural setting are not going to be as comfortable in a trailer park. It’s just their whole way of life,” said Antonia Roybal-Mack, a lawyer who’s from the area and is assisting hundreds of victims in filing administrative claims for damage with the federal government.

“Here’s Hoping It’s a Paperwork Issue” Erika Larsen, seated, and Tyler White on the mountain behind their property. (Adria Malcolm, special to ProPublica)

Erika Larsen and her partner, Tyler White, were living in a camper van after losing their home in the village of San Ignacio when they learned FEMA was offering temporary housing.

Their livelihoods depended on being on their land, they said. Larsen is an herbalist who before the fire made tinctures and elixirs with ambrosia, hops and nettle she grew in gardens dotting the property. White works in construction and gets a lot of her work from neighbors who know where to find her.

Early on, White was feeling optimistic. She posted to a private Facebook group of disaster survivors on Aug. 23, a day after a FEMA inspection.

“Amazingly enough, yesterday we were approved for a trailer to live in. There is only one place to put anything on our property because of flooding. Our well and septic are shot because of fire and floods so we didn’t think we’d qualify. But we did. We should get it in a couple months,” she wrote.

“All this is to say as much as it stinks dealing with FEMA,” she wrote, “as hard of a fight as it can be, you might just get something out of it.”

First image: White looks at a photo of the camper van she and Larsen lived in after the fire. Second image: Larsen transports tree seedlings to their property for planting. Third image: White digs through items she kept after the fire. She says she is not ready to part with certain remnants of their life before the fire, which still carry emotional weight for her. (Adria Malcolm, special to ProPublica)

Two days later, she added something.

Their case manager had “asked us if we wanted to live in a FEMA trailer park. We told him we’d been approved for a trailer at home and he said there was no record of that. Here’s hoping it’s a paperwork issue!”

She and Larsen waited for word while living nearby in their camper van. By late August, afternoon storm clouds often formed over the mountains, bringing monsoons that seeped through the roof and flooded their land. They worried about further damage to their property while they were away.

Two weeks after her first post, White offered another update. FEMA said the proposed site was in a floodplain, so the couple wasn’t allowed to put a trailer there.

“Our case manager said lots of people have been saying they were told they were approved for a trailer just to be declined,” she wrote. “So the moral of my story is: If a bunch of FEMA people come and tell you you are getting a trailer you still might not be eligible.”

They appealed the decision, but more inspections over the next two months determined that other sites on their property were too far from a septic tank, well or electricity hookup.

The agency also apparently made an error in its denial: Inspection records provided by Larsen showed the proposed trailer site isn’t actually in the floodplain on the map that FEMA says it uses for such decisions.

First image: The fire and flooding destroyed the well on White and Larsen’s property. Second image: FEMA officials said that potential trailer sites were too far away from the electrical hookup on the couple’s land. Third image: White and Larsen propped their mailbox up on some of the sandbags they placed in an attempt to prevent further flooding. (Adria Malcolm, special to ProPublica) White collects water from the Sapello River for her garden. FEMA told White and her partner they couldn’t place a trailer on a proposed site because it was in a floodplain, though that’s contradicted by the local flood map. (Adria Malcolm, special to ProPublica)

FEMA officials declined to comment on particular cases without written permission from the people who’d filed the claims.

By early November, as temperatures dropped and a long winter loomed, they’d had enough and decided to move into a dilapidated mobile home on a neighbor’s property. The landowner used it for storage, but at least it had a wood stove.

Larsen likened dealing with FEMA to an abusive relationship. “It really has been the worst part of this whole experience for me,” she said. “I feel capable of doing the work of processing this trauma. But having to keep talking to these people that are just fucking with my mind is pretty intense.”

The Flood That Never Came

It wasn’t just residents who saw that the program wasn’t working. State and local officials asked FEMA to relax its requirements or make accommodations, but the agency didn’t budge.

After FEMA announced in early August that it would provide trailers, officials met with Amanda Salas, the planning and zoning director for San Miguel County, and told her inspections and approvals could take 10 weeks.

Across the burn scar, survivors were arranging inspections with caravans of contractors and FEMA employees who poked around their properties to evaluate possible sites.

In late-September, Salas cleared her desk, expecting a flood of building permit requests from residents seeking permission to place FEMA trailers on their land.

Getting people back was “number one,” she said in an interview. “I need them to be in a warm place, you know?”

The flood of permit requests never came. About 35 people expressed interest in FEMA’s housing program when she told them about it after they showed up in her office to ask questions about cleanup and rebuilding. Most withdrew due to bureaucratic hurdles and delays, she said. Her counterpart in Mora County said he observed the same thing.

FEMA spokesperson Aissha Flores Cruz said in an email that the agency respects survivors’ decisions not to apply.

In mid-October, Salas attended a meeting of local and federal officials. It was her first opportunity to talk to high-ranking FEMA officials in person, and she spoke up.

She told them it didn’t make sense to require electricity, wells or septic systems in a rugged area where people didn’t rely on those services before the fire. She asked FEMA to provide gas generators.

“It seemed like they heard us,” Salas said of the meeting. “But they didn’t do anything about it.”

Community members filled a classroom during a town hall meeting with FEMA and the Forest Service. (Adria Malcolm, special to ProPublica)

Meanwhile, state officials sought waivers for the utility requirements and urged FEMA to outfit homes with portable water tanks or composting toilets. The state wanted “to at least get people back in a safe, warm home, on their property,” said Lienemann, the state emergency department spokesperson.

On Dec. 19, as temperatures dropped to single digits in parts of the burn scar, the state had not heard back from FEMA about its request. Ali Rye, an official with the state Department of Homeland Security and Emergency Management, asked for a response and again requested that FEMA approve waivers for high-need cases.

Lienemann said FEMA told the state that it would make decisions on waiving rules on a case-by-case basis. The agency never made any exceptions.

FEMA said federal law doesn’t allow it to waive the rules for its housing programs. And Flores Cruz said FEMA funds cannot pay to reconnect or rebuild utilities because that would be “permanent work” funded through a program intended to be temporary.

Payment for permanent repairs falls to a special FEMA claims office created in January, but it hasn’t cut any checks to survivors yet. Congress set aside about $4 billion in compensation funds in acknowledgement of the federal government’s role in starting the fire.

Sheltered but Not Home

Daniel Encinias is one of the two people who got trailers on their own land. Each month, a FEMA representative stops by and asks for proof that he’s trying to find permanent housing — one of the conditions of living in the agency’s trailers.

He tells them he’s waiting for a check from the $4 billion compensation fund. “The minute FEMA releases the money and gives me enough money to build my home back,” he said, “that’s when things are gonna get done.”

The claims office will handle such requests. It was supposed to start sending out money in early 2023, but the agency is behind schedule.

“I have to tell you, opening an office is hard,” claims office Director Angela Gladwell told a packed lecture hall of frustrated fire survivors at Mora High School on April 19.

FEMA said it now expects to open three field offices to the public this month and it is trying to make partial payments while it finalizes its rules. Case navigators — who are locals who know the communities, the agency pointed out — are reaching out to those who have filed claims for damages.

The throngs of FEMA employees who swarmed into the area last summer to offer short-term aid have moved on. Some survivors are in limbo, running low on disaster aid and lacking the money to rebuild.

Angela Gladwell, left, director of the FEMA claims office for the Hermits Peak-Calf Canyon fire, addresses community members during a town hall meeting in March. (Adria Malcolm, special to ProPublica)

For Rex “Buzzard” Haver, a disabled veteran, the first disaster has split into a tangle of smaller ones. After his home burned in May, his family spent nearly $64,000 on a mobile home — more than the roughly $48,000 he’s gotten from FEMA so far. He doesn’t have the money to install a wheelchair ramp.

The company that delivered his replacement home broke its windows, tore the siding and ripped off lights during delivery. But they won’t come and fix it until the county repairs the road to his house. Haver has no washer or dryer, and for months, his satellite TV provider kept calling to collect a dish that had melted into black goo.

Haver didn’t learn that FEMA was offering trailers until several months after his new mobile home arrived in July, according to his daughter, Brandy Brogan. Now he’s in hospice, and he’s struggling.

“He doesn’t feel that he has a purpose anymore,” Brogan said. “There’s nothing for him to do. There’s nowhere for him to go.”

On a recent snowy afternoon, just down the road from Haver, strong winds rushed past blackened trees and through gaps in David Martinez’s trailer. He raised his voice to be heard over the wind.

“I’ve never been a sick man,” he said, wincing. “Till lately.”

David Martinez (Adria Malcolm, special to ProPublica)

Martinez can hardly walk due to his medical problems. The once-avid outdoorsman spends most days sitting in the kitchenette, the space heater on full blast, watching hunting shows on a 16-inch television. He ultimately got $34,000 from FEMA in short-term aid, but he’s down to a few grand.

On a recent afternoon, his sister, Bercy Martinez, and her grand-nephew drove up the washed-out driveway to deliver groceries and bottled water, which she does a few times a week. She loaded her brother’s fridge. “This is very good,” she said in Spanish of the meatloaf she bought. “It’s not too spicy.”

She’d been asking FEMA for weeks about getting her brother a spot in a mobile home park so he doesn’t have to navigate the bumpy road that makes drives to the clinic so painful.

Two weeks ago, she reached a FEMA employee on the phone and asked if the housing program that had arrived too late for her brother could help him now. The answer, she said, was no. He’s no longer eligible because he has a place to live.

Bercy Martinez drops off groceries for David, her brother, in the trailer he calls the “tin can.” (Adria Malcolm, special to ProPublica)

Were You Affected by the Massive Wildfire in Northern New Mexico? We Want to Hear From You.

Byard Duncan contributed reporting.

Correction

April 26, 2023: This story originally referred incorrectly to a deputy secretary in New Mexico’s Department of Homeland Security and Emergency Management. Kelly Hamilton uses male pronouns, not female pronouns.

by Anita Lee, Sun Herald

This article was produced by the Sun Herald, which was a partner in the Local Reporting Network in 2022. Sign up for Dispatches to get stories like this one as soon as they are published.

Mississippi has pumped millions of dollars into its declining oyster industry, hoping to revive what was once a dominant trade. But in a nod to reality, the state is about to move in a decidedly different direction: scaling back government efforts and leasing to private industry water bottoms where oysters grow.

The Mississippi Department of Marine Resources currently manages and maintains most of those water bottoms, opening them to the public only when enough oysters are available for harvest. But there has been no such harvest on public reefs since 2018 because oysters are too scarce. Under a new law recently signed by Gov. Tate Reeves, Marine Resources will maintain only about 20% of permitted reef acreage for potential public harvest. The rest will be available for private lease.

The shift comes after a series of natural disasters, beginning with Hurricane Katrina in 2005, decimated Mississippi Sound reefs where oysters settle and grow to adulthood. The reefs are ecologically important to the Mississippi Sound and also once contributed millions of dollars a year in sales to the state’s economy.A recent investigation by

ProPublica and the Sun Herald, however, showed that the state’s efforts to address the crisis have fallen short. It found that Mississippi has spent more than $55 million to rebuild reefs since 2005, but did so in ways that did not respond to changing conditions.

The Department of Marine Resources, which regulates and oversees the state’s oysters and has advocated for more private leasing of reefs, has said it doesn’t have the money or staffing to maintain more than 8,112 acres of public reefs in today’s climate.

State Sen. Mike Thompson, of Pass Christian, who authored the bill, said he hopes private industry is able to replenish reefs in a commercially viable way, while also improving the overall health of the Mississippi Sound. “My hope is that water quality and habitat issues in the Sound will start getting right,” he said.

Thompson said he used the state of Louisiana’s more extensive private leasing program as a model for the Mississippi legislation. In Louisiana, private oyster grounds have rebounded from disasters because leaseholders can act quickly to restore damage and spend more time maintaining their investments.

Mississippi previously had a private leasing program for oyster farming, but most of the leased water bottoms were not being maintained. The approved legislation mandates that farmers work their leases or risk losing them. But it also gives oyster farmers more time to build up reefs, with 15-year leases as opposed to the current five-year lease terms. Leaseholders also will have first right of renewal on their water bottoms.

Thompson said Marine Resources has already mapped out lease areas where it will keep control and maintain established reefs. And it will put the revenue it receives from the leases toward oyster restoration projects. The law also sets out a process for Marine Resources to enter into and enforce the leases.

Joe Spraggins, executive director of Marine Resources, hopes the lease program will be in place by August. The agency will advertise for lease proposals and evaluate them with names of applicants removed, so the process will be fair, he said.

The state has traditionally used fresh shell or limestone to replenish the reefs created by oysters. But farmers put more effort into their reefs, planting shell or rock and raking or turning the material at intervals so that oyster larvae have clean surfaces to settle on.

Ryan Bradley of the nonprofit organization Mississippi Commercial Fisheries United expects interest in leasing to be high. He said he hopes Marine Resources will be transparent in setting up the lease program by notifying the public that it is available and posting information on its website.

by Mary Hudetz, ProPublica, and Graham Lee Brewer, NBC News

More than a dozen senators are pressing for the museums and universities that hold the most Native American remains to explain why they’ve failed for decades to return thousands of them to tribes as required by federal law.

Members of the Senate Committee on Indian Affairs and other senators singled out for scrutiny the five institutions identified in a recent ProPublica and NBC News investigation as having the largest collections of Indigenous remains — including powerful and prestigious universities with long legacies of delaying repatriation requests.

“It’s inexcusable, it’s immoral, it’s hypocritical, and it has to stop,” said committee chair Brian Schatz, D-Hawaii.

In letters sent Thursday to the University of California, Berkeley, Harvard University, the Ohio History Connection, the Illinois State Museum and Indiana University, the senators called the slow pace of repatriations of Native American remains and belongings under the 1990 federal law “unacceptable.”

“For too long, Native ancestral remains and cultural items have been unconscionably denied their journey home by institutions, desecrated by scientific study, publicly displayed as specimens, left to collect dust on a shelf, or simply thrown in a box and forgotten in a museum storeroom,” the senators wrote.

More than 30 years ago, Congress passed the Native American Graves Protection and Repatriation Act, or NAGPRA, requiring federally funded museums, universities and government agencies to identify human remains they believe to be Native American and then work with tribal nations to repatriate them.

Lawmakers expected the process would be completed or nearly completed within five years, the senators said in the letter, yet “a daunting amount of work remains.”

Hundreds of institutions nationwide still hold a total of more than 100,000 ancestral remains, according to the news organizations’ analysis of federal data. None has more than UC Berkeley, with 9,000, followed by the Illinois State Museum and the Ohio History Connection.

The senators wrote that Congress “continues to receive troubling testimony” about institutions’ poor compliance with the law, including insufficient consultation with tribes, poor tracking and misidentification of items, disrespect for traditional knowledge and allegations of avoiding or slowing repatriation efforts.

In response to the news organizations’ request for comment on the senators’ letter, UC Berkeley said in a statement that it will cooperate in a “fully transparent manner” with the Senate’s requests. It apologized for the harm caused by its inaction and said repatriation is now a top priority.

“We accept responsibility and accountability for the university’s past failings and errors in so far as repatriation and tribal relations are concerned,” it added.

A spokesperson for the Ohio History Connection said it welcomed the senators’ attention to NAGPRA, adding in a statement: “This work requires many resources and time commitments — for both institutions like ours and the federally recognized Tribes — to undertake repatriation on such a large scale.”

Fred Cate, Indiana University’s vice president for research, said the school had assigned six staff members in recent years to work on NAGPRA compliance. “The whole point is to get to a consensus point with the tribes we’re working with,” which takes time, he said.

Harvard and the Illinois State Museum did not comment Thursday; Harvard has previously issued an apology for past collection practices, and the Illinois museum said it developed plans to speed compliance with NAGPRA.

In the letters, the senators asked the universities and museums to respond to a list of written questions within two months, including how they decide whether to grant or deny tribes' requests and how long they take to make decisions.

The senators cited an expert’s recent estimate that it could take 70 more years for institutions to complete the repatriation process. “This is simply unacceptable,” they wrote of the estimate by Chip Colwell, who as curator of the Denver Museum of Nature & Science oversaw its repatriation efforts.

Meanwhile, the Interior Department recently estimated the process could take 26 more years, based on institutions' progress in the past decade. Schatz said he wants it done much sooner. “It can’t take another decade or two for this to get fixed,” he said.

The Interior Department this year is reviewing proposed regulations that would push museums and universities to finish the work within three years, which some institutions have argued is not feasible.

Edward Halealoha Ayau, the chair of the NAGPRA Review Committee, said museums have too often skirted the mandate to consult with Indigenous people. Many institutions rely only on their own records and do not review evidence rooted in tribal traditions and knowledge when they decide on claims, he added.

“You can’t just sit in the corner twiddling your thumbs, saying, ‘Oh, we don’t know whose ancestors these are,’” he said.

Ayau said the senators’ letter sends a message to the hundreds of other institutions that also must comply with NAGPRA.

The senators also asked the institutions what actions the government has taken against them under the law and the steps they took in response. Penalties are rare, federal data shows. Only 20 institutions have been fined under the law — for an average of $2,955 per institution. Of the five institutions that received a letter from the Senate, only Harvard and UC Berkeley have been cited, and they were not required to pay fines.

Schatz said he hoped the letter would encourage the institutions to speed up their compliance with the law.

“If there are deans and presidents and boards of trustees who are sitting around, trying to figure out how to live their values, this is a very practical, immediate way to start,” he said.

Schatz added that he expects the institutions will respond to the senators’ questions but that if they do not, the committee has the power to subpoena them.

Logan Jaffe contributed reporting.

by Kyle Hopkins, Anchorage Daily News

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

Alaska governors and mayors have at various times appointed Judy Eledge to the state Board of Education, the Anchorage Health and Human Services Commission and the Alaska Juvenile Justice Advisory Committee. She stood at the side of Gov. Mike Dunleavy, a personal friend, on the night of his 2018 Republican primary victory.

When it was time for the state to cast its Electoral College votes in the 2020 presidential election, Eledge was one of the three people representing Alaska. And in his annual State of the State speech earlier that year, Dunleavy asked her to stand for an ovation because she exemplified “the heart of Alaska.”

But on March 14, 2022, in a surreptitiously taped conversation with a co-worker in her office on the top floor of one of Alaska’s largest public libraries, a different side of Eledge came out. As visitors waited in the lobby for a meeting with the city of Anchorage’s deputy library director, she lowered her voice to a whisper.

“They Got a Bunch of Woke, Liberal, I Consider Racist, Native People”

Watch video ➜

Eledge said she had spotted one of the workers she supervised removing books that contained the word “Eskimo,” a term that is now seen by many as unacceptable. This was exactly the kind of behavior, Eledge has repeatedly told her city underlings, that Anchorage Mayor Dave Bronson hired her to stamp out.

“I happened to live in Barrow,” she said, referring to the mostly Inupiat city that residents in 2016 renamed Utqiagvik. “They consider themselves Inupiat Eskimos but they got a bunch of woke, liberal, I consider racist Native people, young people. … It’s all about, ‘We stole their land.’ Which is bullshit!”

Eledge, 76, seamlessly moved from topic to topic, sharing her disgust with the use of Indigenous land acknowledgements and the sharing of pronouns. She called transgender people “very troubled” and said she was surprised that her recent public testimony against transgender girls participating in girls school sports had not made the front page of the Anchorage Daily News.

“Equitable, to me, is a racist word,” she said to her subordinate, who recorded the conversation because she feared no one would believe her about how Eledge interacted with her colleagues. At one point, Eledge noted that library employees were working to “wipe out everything white in the world.”

“Equitable, to Me, is a Racist Word”

Watch video ➜

It’s not the first time Eledge has made controversial remarks. She lost a 2021 campaign for the Anchorage School Board after images of her social media posts criticizing people of color, transgender people, Alaska Natives and Muslims circulated online. Eledge at the time claimed some posts had been edited or taken out of context, although she never offered proof or specified which posts she alleged had been altered.

Eledge continues to hold an active role in Alaska conservative politics. Once described by a columnist as “one of the Alaska GOP’s grande dames,” Eledge has been a friend to and fundraiser for some of the state’s most powerful elected officials. She personally donated more than $40,000 to Republican candidates and groups over the past decade and serves as president of the Anchorage Republican Women’s Club, which hosts debates and fundraisers.

Despite Eledge’s sometimes-inflammatory comments, social media posts and public testimony, Dunleavy and Bronson have awarded her power and public money. What’s more, the Daily News and ProPublica found that the city and state agencies meant to protect Alaskans' civil rights have been hamstrung.

Mike Dunleavy watches results come in for the 2018 Republican primary for governor. Judy Eledge stands beside him, giving a double thumbs-up. (Marc Lester/ADN)

When the same library worker who recorded the chat tried to file a complaint against Eledge with the Alaska State Commission for Human Rights, an investigator told her in January that because some of Eledge’s discriminatory remarks were directed against LGBTQ+ people, the agency would not investigate. “It’s a very sensitive issue for Dunleavy’s office,” the investigator told the library worker, who recorded the exchange.

The city agency tasked with investigating civil rights violations has also received complaints about Eledge, employees said, but has taken no action. The newsrooms found the agency is plagued by a backlog of open complaints, a problem that stands to grow worse as three of its four investigators have quit since the beginning of the year.

When library employees complained about Eledge to the city’s human resources department, the mayor’s then-director of human resources wore an “I’m with Judy” T-shirt to a library advisory board meeting. The director of the city Office of Equal Opportunity has filed lawsuits in state and federal court saying the mayor fired her after she began to investigate complaints against Eledge.

Veri di Suvero, executive director of the Alaska Public Interest Research Group, a nonprofit watchdog that has filed public records requests related to the state’s rollback of LGBTQ+ civil rights protections, said that the nullification of Alaska’s civil rights agencies allows abuses of power to go unchecked.

“When people aren’t able to report these issues, they go unaddressed and signal to the agencies causing harm that these things are OK,” di Suvero said.

In a brief phone conversation, Eledge said she could not comment on accusations involving her statements at the library because they are the subject of a lawsuit. Asked about her social media posts, which are not included in the lawsuit, Eledge said, “I’ve already commented on those when I was running for school board.” She did not respond to specific questions sent by email and hand delivered to her office.

Bronson did not respond to detailed questions but, through his spokesperson, he sent a statement to the newsrooms. “The Mayor has no comment on these matters due to pending litigation. The Mayor denounces all hateful, racist, and derogatory remarks made by any Municipal employee, and expects those who work for the city to uphold the law and protect the rights of all,” the statement said. (A few hours later, the mayor’s spokesperson sent a revised statement that did not include the sentence denouncing “hateful, racist and derogatory remarks.”)

At a city Assembly hearing in April 2022 when Eledge came under fire from an LGBTQ+ advocacy group, the mayor forcefully defended his friend.

“I’ve known her for 25 years. She is certainly energetic and outspoken, but she’s a dedicated employee,” he said. “She’s doing a great job, and she continues to have my undying and unquestioned support.”

For his part, Dunleavy in March appointed Eledge to a national education commission.

The governor refused an interview request and did not answer questions about Eledge’s public record of discriminatory remarks, his friendship with her or their fundraising relationship. He also did not answer questions about whether his administration’s decisions to award a no-bid contract to Eledge and appoint her to a national committee signaled that he saw no problem with her statements.

In an email, a spokesperson wrote: “Governor Dunleavy appointed Ms. Eledge to the Education Commission due to her long and distinguished career in public education.”

A Voice Against LGBTQ+ Protections

Eledge moved to Alaska in the 1980s and worked as a teacher and principal until 2004, according to her resume. After her retirement, under Republican governors Sarah Palin and Sean Parnell, the state Department of Education and Early Development paid Eledge at least $189,000 for consulting work and related expenses between 2007 and 2012.

The payments appeared to stop when Bill Walker, an independent, became governor, but they resumed shortly after Dunleavy’s election. The education department has paid Eledge $79,970 since 2019. Dunleavy also added a direct payment of $30,000 from the governor’s office for a no-bid contract during his first year in office.

According to Dunleavy’s spokesperson, since 2003, Eledge “has owned an education consulting business that specializes in assisting public schools in the areas of math and reading.”

Eledge’s more public roles have been as president of the Alaska Republican Women’s Club and in publicly testifying on behalf of Republican candidates and causes. In 2015, Bronson and Eledge testified before the Anchorage Assembly on consecutive nights, saying they opposed adding LGBTQ+ protections to the city civil rights law. They said laws protecting people from discrimination on the basis of their gender identity and sexual orientation posed a threat to religious freedoms and vowed to force a repeal of any such protections through voter petitions.

Bronson, who had not yet held public office at the time of that meeting, testified as a board member of the Alaska Family Council. The council is a conservative Christian organization that has opposed gay marriage and civil rights protections based on gender identity and sexual orientation.

“Transgender People Are Very Troubled”

Watch video ➜

Eledge made no secret of her beliefs. Over a one-month span in September 2020, for example, the following posts appeared on her Facebook page:

• “How sad that people of color seem to have no self esteem! If so why all the focus on color?”
• “This is a slippery slope we began with gay marriage. Next was transgender so of course pedophile is next.”
• “I wonder if [actress] Cynthia Nixon, who I believe is gay really has a son who is transgender or just confused on male/female role models. Does she feel bad about encouraging her son into something that has a very high rate of suicide? Does she feel bad when she gave her son puberty blockers to ensure her son became a ‘woman?’ Does she feel bad about telling her son a lie? Final question. Does she feel bad for the child abuse she is doing to her son?”

On Nov. 9, 2020, as Alaska’s COVID-19 hospitalizations and deaths hit then-record highs, Eledge urged parents to “get on the phone and call your doc and local hospitals and tell them to tell the truth about hospital capacity! Bullcrap on overwhelmed!” The same week, she suggested Alaska should “stop the damn testing” for the virus.

In December of 2020, Eledge put out a call to action. “If Joe Biden succeeds in becoming president it is going to be VERY important for all of us to get elected to something,” she wrote.

“There is going to be bad crap coming down and we need to fight at state and local level. None will be worse than school boards. I can’t even imagine the transgender, racist and revisionary history that will be taught!”

(Obtained from Judy Eledge’s Facebook page)

A Daily News and ProPublica review verified that the posts included in this story were posted to Eledge’s Facebook page and remained there as of this week.

An Unsuccessful School Board Campaign, Then a New Job

In January 2021, Eledge filed to run for the Anchorage School Board, announcing she would campaign along with three other conservative candidates in hopes of sweeping the open seats. But as screenshots of her Facebook posts began to circulate on Twitter and Facebook, the group abandoned its combined campaign, though Eledge claimed some of the screenshots had been altered and others were taken out of context.

Eledge, right, watches as municipal election workers tally results in the 2021 school board race that she ultimately lost. (Bill Roth/ADN)

Dunleavy and Bronson each donated to Eledge’s campaign. The mayor’s wife, Deb Bronson, also donated.

The longtime director of Anchorage city libraries retired on the first day of April 2021, creating a vacancy for the next mayor to fill. A few days later, Eledge lost her school board campaign while Bronson won the mayor’s race. In July, when he was sworn in, he named one of the conservatives who had been running for school board alongside Eledge, former principal Sami Graham, as the city’s new library director.

The city Assembly rejected Graham’s nomination because she had no library science degree, a requisite for the job. Bronson responded by making Graham his chief of staff and placing her office in the library. Three days later, on Aug. 27, Bronson named Eledge as his new head of libraries.

Eledge didn’t have a library science degree either. The Alaska Library Association raised concerns in a letter to the Anchorage Assembly, saying that appointing someone who is not a librarian and does not meet the qualifications for library director would be like appointing a fire chief who’d never fought a fire.

The mayor made her deputy director instead — a role that does not require nomination hearings or approval by the Assembly. Eledge would run the library for the next year in the absence of a permanent director.

Eledge, second from right, stands with Anchorage Public Library employees at a city Assembly meeting. Although Eledge does not have a library science degree, Mayor Dave Bronson tried to give her power over the city library system. (Bill Roth/ADN)

Jacob Cole, a longtime library employee who had served as acting director, said the deputy director job was created specifically for Eledge. Cole said he had unsuccessfully applied for the library director position, a process that included a one-on-one interview with the mayor.

“He wanted to know how to kick the homeless out of the library,” Cole said. “He’s like, ‘The homeless is a real problem in the library and Judy is telling me how much of a situation this is, and what do you think we can do to lessen them coming to the library?’”

Bronson also asked about the presence of social workers in the library and whether they should be removed to avoid encouraging homeless people to visit the building.

“I said, ‘The homeless are there no matter what. This is just meeting them where their needs are,’” Cole said.

Cole said he doesn’t know why he didn’t get the library director job. In the recorded March 14, 2022, conversation with a colleague, Eledge said that she believed Cole was “on the spectrum.”

“He’s got, like, Asperger’s,” she said in her office, using an outdated term for a type of autism.

Asked about that comment, Cole laughed. “For the record, I am in no way on the spectrum,” he said.

Cole said that over the months they worked together, Eledge would sometimes come into his office and make discriminatory remarks. She believed that librarians were conspiring to remove conservative books from shelves and that parents who allowed children to read books about gender were harming their children, and she said she didn’t trust women to select books for the collection that would appeal to boys and men.

Some of her most inflammatory remarks involved Alaska Natives, according to Cole. “She said, ‘I worked in an Alaska Native village. If it wasn’t for the white man and his oil money, they’d still be raping their daughters in caves.’” (A reporter for Alaska Public Media asked Eledge about this comment in May 2022. Eledge replied that she wouldn’t “honor the request by responding” to the question.)

On other workdays, Eledge talked about the medical profession, which she said was ruining the lives of people who did not want to take COVID-19 vaccines.

“She would go on rants about the vaccine and how she thought the vaccine wasn’t safe for children and how the vaccine was going to mess with your DNA,” said Cole, who at the time served as Eledge’s second in command.

“I would turn and say, ‘Judy, I have work to do,’” he said.

Cole is one of at least three library employees who quit while Eledge served as the de facto director, and who later filed complaints with the city. The exchanges that Cole says he had with Eledge, along with many of the alleged statements described by the library employee who made the recordings, appear in the lawsuits pending against the city in state and federal court.

“You Can’t Say That”

The woman who recorded Eledge said she began making recordings after their first meeting, at the library’s flagship location in midtown Anchorage, on her first day on the job.

She later described that day in a letter to the Anchorage ombudsman: “During our meeting Judy said, ‘I don’t have the same views about Eskimos as other people at the library. I worked in Barrow; I know they diddle their kids. It’s a well-known secret, people just don’t talk about it. I knew a 2nd grader that had gonorrhea. They send their FAS [fetal alcohol syndrome] babies to Anchorage because they don’t want to take care of them.’”

The woman provided the Daily News and ProPublica with a recording of a 74-minute conversation that she and Eledge had on March 14, 2022. She asked that she not be named because she is worried about retaliation from Eledge, the mayor or their allies.

The employee wrote the ombudsman on March 17, 2022. On March 31, the ombudsman suggested she take her complaints about Eledge to the city Office of Equal Opportunity. The office is charged with helping employees who complain about discrimination or a hostile work environment.

The employee first spoke to Heather MacAlpine, the director of the equal opportunity office, on April 1, according to a lawsuit that MacAlpine later filed against the city. (MacAlpine’s attorney said neither she nor MacAlpine could comment on the details of the case while the lawsuit is still pending.)

MacAlpine asked to talk to city human resources employees about the allegations against Eledge, the lawsuit says. One of the HR workers told MacAlpine that he had in the past “also felt compelled to tell Eledge, ‘You can’t say that’ in response to certain of her discriminatory comments,” the suit says.

The HR officials told MacAlpine that employees should bring their concerns directly to the human resources department. But the department was at the time run by Niki Tshibaka, a political ally of the mayor and the spouse of conservative U.S. Senate candidate Kelly Tshibaka, whom Eledge supported with campaign donations.

The problems at the library continued, according to MacAlpine’s lawsuit, with several employees resigning under Eledge’s leadership. At least five employees brought complaints directly to the human resources department, which refused to begin an investigation, according to the suit and interviews with library workers.

On May 3, 2022, MacAlpine visited the library and spoke to several employees who complained about Eledge’s statements and behavior. According to her lawsuit, the employees said Eledge had threatened to retaliate against any workers who repeated her comments. The employees said Eledge told library security to selectively enforce a policy that allowed visitors to bring only one bag into the building. According to the employees, Eledge told security they should “not enforce the policy against ‘mothers with diaper bags,’ but to enforce it strictly against individuals who appeared homeless, many of whom appeared to be Alaska Native.”

MacAlpine again scheduled a meeting with the human resources department. She prepared to summarize employees’ specific complaints. “By this point, multiple Loussac employees had made complaints to HR, so Ms. MacAlpine expected that the additional information she had learned would be helpful to HR’s investigation,” the suit said. (Loussac is the city’s main library.)

But when she arrived at City Hall for the meeting on May 11, 2022, she was fired.

Cole resigned May 23. Alaska Public Media reported later that month that 12 then-current or recently departed employees described a toxic and chaotic work environment under Eledge.

When the Anchorage Library Advisory Board next met, on June 15, 2022, Human Resources Director Tshibaka sat beside Eledge wearing a T-shirt that said “I’m with Judy.” Tshibaka has declined interview requests and did not respond to emailed questions for this story.

MacAlpine’s lawsuit, filed June 23, claimed that Bronson had made it clear he would not fire or discipline Eledge no matter what she did at the library. It says MacAlpine was fired for investigating complaints against Eledge, in violation of city whistleblower protections.

The city answered that lawsuit in July, denying claims that Eledge made racist statements and saying MacAlpine was not fired in retaliation for acting as a whistleblower. Eledge co-hosted a Dunleavy fundraiser the next month.

In February 2023, MacAlpine filed a lawsuit in federal court involving the same claims. The city has not yet answered that lawsuit. Both suits are pending.

“A Very Sensitive Issue for Dunleavy’s Office”

Library employees had two other bodies with which they could file complaints against Eledge.

Both are tasked with enforcing anti-discrimination laws. One is operated by the state: the Alaska State Commission for Human Rights. The other is run by the city: the Anchorage Equal Rights Commission.

But when one of the library employees attempted to make formal complaints about Eledge to the state commission, an investigator said she had been told she cannot investigate.

“I just think that’s wrong,” the investigator said, according to a recording of a phone call obtained by the Daily News and ProPublica.

The employee replied: “So I can’t even file a complaint about it? They won’t … not saying you personally, but the commission won’t take a formal complaint on it?”

“Nope,” the investigator said. “And now it’s nixed completely because a lot of what’s happening at the library has to do with LGBTQ stuff.”

“This is a very sensitive issue for Dunleavy’s office,” the investigator said.

“We Cannot Take This Case Because of the Political Implications”

The library employee said she was unable to file a formal complaint with the commission because the investigator told her she did not meet the criteria for a protected class of worker, such as a gay or transgender person, who was directly discriminated against by Eledge’s remarks.

The investigator said in an email that she could not speak to the media on behalf of the commission and could not talk about the case because complaints and investigations are confidential.

Commission director Robert Corbisier provided a written statement in response to the recording. He said the investigator misspoke and that the commission can’t pursue a discrimination case if the complainant is not a member of the protected class of people being discriminated against.

“At no time did I, or any manager or supervisor at ASCHR, or any ASCHR Commissioner during my tenure, state that this agency would not take a valid complaint due to political implications,” Corbisier said. “Since my first day here, I made it my personal mission to ensure the agency’s discrimination investigations and prosecutions avoid political influence.”

Eledge’s husband, Randy Eledge, is a former commissioner for the agency.

In March, the Daily News and ProPublica reported that the state civil rights agency had stopped accepting most categories of complaints about anti-LGBTQ+ discrimination based on advice from state Attorney General Treg Taylor. The newsrooms found the decision had been requested by a conservative Christian group and was made the week of the Republican primary for governor, in which Dunleavy was criticized for not being conservative enough.

The issue arose after the U.S. Supreme Court ruled in June 2020 that workplace discrimination against people based on their sexual orientation or gender identity was illegal. After that case, known as Bostock v. Clayton County, the state human rights commission began accepting all categories of complaints about anti-LGBTQ+ discrimination. Taylor later advised the agency to interpret the Bostock ruling more narrowly and to only accept complaints related to discrimination in the workplace.

Library employees complained to the city agency as well.

According to attorney Caitlin Shortell, who said she represents five current and former library employees, the Anchorage Equal Rights Commission has not investigated complaints of harassment and bullying within the library.

Over the past three years, fewer people have been bringing their questions and complaints about discrimination to the city agency. Yet the backlog of open cases is growing. At the end of 2021, the agency had 70 open cases. Today there are 81. It’s unclear if the library complaints are part of the backlog.

Commission director Keoki Kim said in an email that the agency is “fully enforcing” the city’s LGBTQ+ protections. Kim said that the commission plans to fill the vacant investigator positions and that reducing the backlog is a top priority.

Eledge remains deputy director of the library today. The Assembly confirmed a new library director, Virginia McClure, in December. But McClure took a leave of absence the next month, putting Eledge back in charge of library operations until March 13.

Eledge will represent Alaska’s educators as a member of the national Education Commission of the States. Dunleavy in March appointed her to the commission, where she joins governors, state legislators and heads of state education boards tasked with steering U.S. education policy.

In the meantime, Eledge has continued her advocacy against LGBTQ+ protections. Just last week she testified before the Alaska Legislature in support of a “parental rights” bill, proposed by Dunleavy, that would restrict the rights of transgender students.