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by Ilya Marritz

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An atmosphere of conviviality greeted Republican attorneys general arriving in New Orleans for their recent winter conference. It was Mardi Gras, and tourists traipsed through the lobby of the historic Roosevelt Hotel wearing colorful beaded necklaces and clutching cocktails.

A few feet from the check-in desk, if any of the attorneys general stopped to notice it, stood a replica of former U.S. Sen. and Louisiana Gov. Huey Long’s “deduct box,” which reportedly contained more than $1 million in cash donations from businesses and wealthy individuals when the notoriously corrupt Long was assassinated in 1935. The attorneys general were in New Orleans on their own fundraising mission, albeit aboveboard. That evening, in a ballroom one flight up, the Republican Attorneys General Association hosted an invite-only Super Bowl party, where they mixed and mingled with donors, and alcohol flowed freely. There was reason to celebrate. Having endured its worst crisis since it became a standalone entity in 2014, RAGA was thriving again.

RAGA, a tax-exempt political group representing more than half of the states’ chief legal officers, had come in for particularly harsh criticism for its support of Trump’s election fraud claims in the wake of the riot at the U.S. Capitol on Jan. 6, 2021. A RAGA sister organization had sent a robocall urging “patriots” to join Trump’s Jan. 6 rally on the Ellipse in Washington. Then the fuzzy recorded voice went one step further, saying, “We will march to the Capitol building and call on Congress to stop the steal.”

Only a few weeks earlier, Texas’ Republican attorney general, Kenneth Paxton, had brought an emergency motion to the Supreme Court to invalidate the results of the vote in four states Joe Biden had won. Seventeen Republican attorneys general, all RAGA members, supported the motion.

Texas Attorney General Ken Paxton waves to the crowd during a rally featuring former President Donald Trump on Oct. 22, 2022, in Robstown, Texas. (Photo: Nick Wagner/AP)

The response from corporate America was swift. A Comcast spokesperson told The New York Times, “We are appalled and condemn these actions in the strongest possible terms and have communicated that to R.A.G.A.” The University of Phoenix demanded RAGA return recent contributions. Regular five-figure supporters like Microsoft and Coca-Cola abruptly cut RAGA off, cold turkey. Contributions to the group dropped 36% in 2021 compared with 2020.

RAGA’s embrace of Stop the Steal also caused an organizational exodus. RAGA’s executive director resigned days after news of the robocall became public. Georgia’s Republican attorney general, Chris Carr, who was chairman of RAGA at the time, decided by April 2021 that he could no longer lead the group, citing a “fundamental difference of opinion” about “the significance of the events of January 6.” At least seven staffers left in the wake of the riot, with one writing a resignation note that said: “The direction is not one I can honestly stand behind.”

At the conference in New Orleans, there was little sign of such chaos. And those corporations that expressed such outrage? While some companies, like Microsoft and Coke, are still staying away, Comcast is more typical. The company resumed giving barely a month after condemning RAGA, and has since contributed close to half a million dollars. Many others are back in the fold as well, including Amazon, Walmart, Visa, Capital One, MasterCard, Intuit, Walgreens, General Motors, Altria, Home Depot and JPMorgan Chase’s PAC. Even the University of Phoenix, having pulled its donation, is filling RAGA’s coffers once again.

One might imagine that the corporate largesse reflects RAGA having distanced itself from the extremes of its party. Hardly. Since the Jan. 6 controversy, Republican attorneys generals have even more tightly embraced Trumpism and the movement that sows doubt about the legitimacy of elections.

Powered by returning companies, RAGA revenues in 2022 jumped 68%, reaching $21.6 million. The group used some of its funds to boost midterm candidates who pushed the lies that Trump won in 2020 and that the voting system is rife with fraud.

RAGA’s rapid return to health demonstrates that some corporations are willing to look past even the most extreme views because access to states’ top law officers is just too valuable. Ethics watchdogs have long been concerned that fundraising shindigs like the one in New Orleans, or at regular retreats at ski and golf resorts, allow corporate donors to buy access to RAGA and its opposite number, the Democratic Attorneys General Association. A 2014 series in The New York Times detailed how corporate lobbyists and lawyers used such access to advocate for lighter regulation and favorable legal settlements.

ProPublica reached out to all the companies mentioned in this story. Few returning donors responded to requests for comment. Others, like AT&T, emphasized that they give equally to Democratic attorneys general. An Intuit spokesperson wrote: “We believe engagement with policymakers is essential to a robust democracy.”

RAGA did not answer ProPublica’s specific questions but offered this written response from executive director Peter Bisbee: “Our nation’s Republican attorneys general are the most effective group of elected officials in combating federal overreach, protecting the Constitution, and stopping the left’s woke agenda that targets everything from the innocence of school children to the retirement accounts of hundreds of millions of Americans. I do not believe violence has any place in the political discourse of our country.”

“Jan. 6 was a gut punch to our democracy,” said Chris Toth, the former executive director of the National Association of Attorneys General, a bipartisan group. “And the fact remains that many of these contributors who said that they were going to cut off RAGA are now contributing money.”

The comeback is the product of assiduous courtship.

In the summer of 2021, South Carolina Attorney General Alan Wilson and RAGA’s executive director scheduled a virtual meeting with four representatives of the pharma and medical devices giant Johnson & Johnson. Wilson had recently become leader of the organization’s effort to rebuild relationships with donors: He had taken over as RAGA’s chairman after Georgia’s Carr, who unambiguously said that Trump lost the election, resigned.

South Carolina Attorney General Alan Wilson (Photo: Meg Kinnard / AP)

At the time, Johnson & Johnson was on the record as “reviewing” its political giving. The company’s then-CEO, Alex Gorsky, said in a statement shortly after the Capitol riot: “As a U.S. military veteran who served overseas to protect our democracy, I’m devastated by this assault on what our country has stood for since its founding: free, fair and peaceful elections.”

But Johnson & Johnson was also facing threats to its bottom line. More than 40 attorneys general were investigating the company’s marketing of talc, a mineral that has been linked to cancer. Separately, Wilson was one of 47 state attorneys general actively pursuing a settlement with a Johnson & Johnson subsidiary, Janssen, for its sales and marketing of opioids.

The calendar invite to the meeting, on Aug. 26, 2021, included two of Johnson & Johnson’s top executives handling opioid lawsuits: worldwide vice president for litigation Erik Haas and senior counsel Marc Larkins. The initial email to set up the meeting proposed “a RAGA call with J&J.” RAGA executive director Bisbee was invited as well, according to the records, which were obtained by American Oversight, a nonpartisan watchdog focused on transparency in government.

It’s not clear what was discussed, but Wilson’s consultation appeared to have an effect. Within a month, J&J sent a $285 check to RAGA, followed by a $50,000 donation in November 2021. The law firm that set up the meeting is a longtime RAGA supporter and contributed to Wilson’s 2022 reelection campaign.

Legal experts said that attorneys general should not take meetings where active litigation could be discussed alongside appeals for political donations.“There’s an incredible conflict of interest there, and there’s certainly an appearance of impropriety,” said Toth. “It’s not rocket science to stay on the right side of the ethical line here.”

In February 2022, Wilson announced an opioid settlement with Johnson & Johnson and three opioid distributors, worth $361 million to the state. Larkins’ name appeared on the consent judgment. South Carolina’s settlement with Johnson & Johnson followed a formula negotiated jointly by dozens of states. There is no indication that the drug company received preferable treatment because of its support for RAGA.

Wilson did not respond to an extensive list of questions from ProPublica.

Johnson & Johnson did not comment, but provided a link to its “Political Engagement” webpage, which states, in part: “Interactions with any government candidate or official must be conducted in a legal and ethical manner consistent with Our Credo, Company policies, and applicable laws.”

In the summer of 2021, Wilson courted United Parcel Service as well. After the Capitol riot, UPS had said it “believes the democratic process is a fundamental and sacred cornerstone for America” and that “since our founding, our country has stood for free, fair and peaceful elections.” The calendar entry for Wilson’s July 16, 2021 virtual meeting with two UPS lobbyists was titled, simply, “Call - RAGA.”

RAGA laid Wilson’s task out for him clearly in a pre-meeting fact sheet on UPS: “Please remind them that their membership lapsed in February and ask that they renew this quarter,” it said, noting that the company had donated at the Committee Club level, $15,000.

RAGA also itemized past UPS donations to RAGA and DAGA and identified some of UPS’ “policy interests.” They included labor issues, the interstate shipment of illegal or illicit goods and a Securities and Exchange Commission proposal to require companies to report on greenhouse gas emissions.

Three days after the Wilson-UPS meeting, UPS rejoined RAGA with a $15,000 donation, records show.

It’s not clear what was discussed at the meeting. Michelle Polk, a UPS spokesperson, wrote in an email, “We support elected officials in both parties with whom we engage on issues relevant to our business.”

Jeff Modisett, a former Democratic Indiana attorney general who now teaches a unit on attorneys general and ethics at UCLA Law School, said both RAGA and DAGA encourage officials to be attentive to donors’ priorities.

“RAGA is a little more blatant about it, but I think both of these organizations try to find areas of concern for the companies,” Modisett said. “The whole idea of avoiding the appearance of impropriety seems to have been forgotten by an awful lot of attorneys general.”

Republican Attorneys General Association executive director Peter Bisbee (LinkedIn)

At the same time it’s been winning back donors, RAGA has stayed loyal to MAGA. In April 2021, RAGA selected Bisbee as its new executive director. Previously, Bisbee led the Rule of Law Defense Fund, the sister organization to RAGA that commissioned the Jan. 6 robocall. After refusing to concede that Joe Biden won the 2020 election fairly, Alabama Attorney General Steve Marshall was elevated to RAGA chairman in late 2022. The vice chairman is Montana Attorney General Austin Knudsen. His office in 2021 hosted election denier Mike Lindell, the MyPillow CEO, who was then looking for a plaintiff to sign on to a lawsuit to overturn the 2020 election. Knudsen’s office did not say whether Knudsen attended the meeting.

Over the past two years, some of the attorneys general have signed legal actions aimed at helping Trump in his current legal travails, including an amicus brief objecting to the investigation into the former president’s possession of classified documents, which they labeled a “ransacking” by the Biden administration. And they filed a brief arguing that Sen. Lindsey Graham should not be forced to testify before the Georgia grand jury probing Trump’s election meddling. And even before the Manhattan district attorney’s indictment of Trump was unsealed, a number of attorneys general assailed the case, with West Virginia’s Patrick Morrisey calling it “political” and “a travesty.”

In the 2022 midterms, RAGA funded candidates who baselessly cast doubt on the legitimacy of elections. The group spent more than $3 million in Arizona to boost the attorney general campaign of Abe Hamadeh, who said the 2020 election was “rigged”; following his general election loss in 2022, Hamadeh continued to insist he won, despite a recount that confirmed his opponent was the victor. Another RAGA-backed candidate, Matthew DePerno, is under criminal investigation for possibly tampering with voting machines in Michigan. (He also lost.) DePerno told ProPublica “I did not tamper with any voting equipment.” Election denialism was not a losing proposition in all races: Kris Kobach, a longtime proponent of the idea that cheating is rampant in elections, was elected attorney general in Kansas, with RAGA spending over $500,000 to support his campaign. In all, RAGA spent at least $8 million to support eight candidates who denied or questioned the outcome of the 2020 presidential race, according to data from AdImpact.

Candidates for attorney general funded by RAGA in the 2022 midterm elections. First image: Kris Kobach of Kansas. Second image: Abraham Hamadeh of Arizona. Third image: Matthew DePerno of Michigan. (First image: Reed Hoffmann/AP. Second image: Brandon Bell/Getty Images. Third image: Brittany Greeson/The New York Times via Redux)

Rejoining RAGA hasn’t stopped some companies from publicly celebrating their civic engagement. UPS has continued to connect its image with democracy. In 2022, it was listed as the presenter of a “Democracy Game Show” hosted by TV personality Terrence J at Democracy Fest in Atlanta. The Sept. 20 event, on Voter Registration Day, aimed to boost civic awareness among high schoolers.

RAGA owes its returning health to corporations like J&J and UPS, but its life force comes from another source entirely: the nonprofits around conservative judicial activist and longtime Federalist Society executive Leonard Leo, including the Judicial Crisis Network and its parent organization, the Concord Fund.

The Judicial Crisis Network was one of RAGA’s very first donors in 2014, and the first to give five figures. In 2021, when many corporations paused their giving, the Concord Fund stepped in with gifts totaling $2.5 million, amounting to nearly 20% of RAGA’s income that year, compared with contributing just 15% a year earlier. In 2022, as companies came back, Concord’s contribution share dipped only slightly, to 19%.

The money has gone both ways. A for-profit political strategy company partly owned by Leo, CRC Advisors, has collected payments from RAGA worth about $250,000 since 2020. Expense reports describe its work simply as “consulting.”

Leo has not spoken publicly about the unfounded narrative that the 2020 election was fraudulent. But the Concord Fund gave a quarter of a million dollars to the Republican attorneys general as they petitioned the Supreme Court to invalidate the vote in four states in late 2020. And in 2022, Leo wrote a check to support Raúl Labrador, a primary challenger to the incumbent Republican attorney general of Idaho, Lawrence Wasden, who had criticized Texas’s effort to challenge the election results of other states. Wasden lost, and Labrador, who said he would have supported the Texas suit, won the primary and then the general election (with support from RAGA) to become attorney general and a RAGA member.

Federalist Society co-chair Leonard Leo speaks at the National Catholic Prayer Breakfast in Washington, D.C., on April 23, 2019. (Photo: Michael Robinson Chavez/The Washington Post via Getty Images)

Leo’s influence has been felt in other ways, too. In recent months, an obscure controversy has flared up, as some Republican attorneys general have quit the organization that supports bipartisan multistate settlements, the National Association of Attorneys General. In January, a group called the Alliance for Consumers Action Fund ran TV adsassailing NAAG as a “left wing racket” and accusing Ohio’s Republican Attorney General Dave Yost, who is the group’s chairman, of “protecting NAAG’s cash stash.” The Alliance for Consumers is a trade name for the Concord Fund.

Neither Leonard Leo nor the Concord Fund commented.

With a solid 6-3 conservative majority on the Supreme Court, state attorneys general are able to play the role of batting practice pitcher, lobbing the justices the kinds of cases they need to make precedent-setting rulings on all kinds of matters of law. Paul Nolette, chair of the political science department at Marquette University, notes that state attorneys general are the second most common Supreme Court litigator, behind the federal government itself.

“They are a perfect vanguard for a bunch of these doctrines and arguments that had been sitting around in law review articles and now you can actually put this into reality,” Nolette said. “The Leonard Leo-linked groups or other conservative libertarian ideological groups are realizing the time is right.”

A case decided in 2022, West Virginia v. EPA, demonstrates that synergy. The Supreme Court endorsed West Virginia Attorney General Patrick Morrisey’s argument that the Clean Air Act did not give the Environmental Protection Agency broad authority to regulate emissions of gases that cause climate change. The ruling could hobble regulators writing rules at other agencies, too.

Leo has particularly strong ties to RAGA’s new executive director. Unlike his predecessor, whose background was in political strategy, Bisbee came to the job as someone steeped in the conservative judicial movement. He worked for more than seven years at the Federalist Society, as membership director and director for state courts.

Last year, Bisbee was a candidate for school board in East Grand Rapids, Michigan. Records show that about half of the $6,350 he raised for his campaign came from staffers at CRC Advisors, the Leo-owned consultancy. (Bisbee lost.)

Bisbee has never publicly spoken about his role in the robocall. The fact that he was even considered for the RAGA job caused the organization’s then-finance director to resign, writing: “Pete Bisbee approved the robocall expenditure, and was the only other person accountable for RLDF involvement in the January 6 events. Over the last few months, I have fielded, reassured and assuaged concerns from our core donor base on the future direction of our organization. The result of the executive committee vote to nominate Pete as RAGA’s Executive Director is a decision I cannot defend.”

The day after the Super Bowl, the conference at Roosevelt Hotel in New Orleans got down to business. The first panel after breakfast was entitled “Election Law.” The moderator was Indiana Attorney General Todd Rokita, who has cast doubt on the result of the 2020 presidential election. The panelists, including a state legislator, a lawyer and a policy specialist, agreed that there is rampant cheating in elections, and that Democrats want to make it even easier to commit voter fraud. One panelist, North Carolina Speaker of the House Tim Moore, was the plaintiff in Moore v. Harper, a closely watched recent Supreme Court case built around the once-fringe doctrine that state legislatures, rather than the courts, should have the last word on how votes are counted. (Many Republican attorneys general joined an amicus brief in favor of Moore’s arguments; the case has yet to be decided.) Another speaker was Jason Snead of the Honest Elections Project, a nonprofit that is part of the Leo-linked Concord Fund, who spoke about the need for more restrictive voting rules as a means to restore public trust.

More than 200 people sat in the ballroom, many of them lobbyists and lawyers representing some of the best-known corporations in America. After about half an hour, the panel ended, and the room was filled with sustained polite applause.

by Irena Hwang

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

For years, U.S. pharmaceutical companies have relied on drugs produced overseas to meet Americans’ medical needs. And for years, it’s been clear that federal drug regulators couldn’t keep up with inspections of the plants that made those drugs.

But a series of recent deaths linked to eyedrops produced overseas that were tainted with bacteria points to just how seriously behind the Food and Drug Administration is. Three people died and eight others were blinded in the United States from the drops, which were made in a plant in the Indian state of Tamil Nadu that the agency had never inspected prior to the outbreak. Worse, public health officials say they have detected the drug-resistant bacterial strain, which had never been seen in the U.S., among patients who never used the eyedrops, meaning it has likely achieved community spread.

A ProPublica analysis of FDA inspection data as of April shows that the agency’s inspections of overseas drug manufacturers, located mostly in India and China, has dropped precipitously even as the number of manufacturers has remained relatively steady. In fiscal year 2019, the year before the COVID-19 pandemic limited travel and movement, the FDA inspected 37% of the nearly 2,500 overseas manufacturers; in 2022, the agency only inspected 6% of around 2,800. And in India, where the contaminated eyedrops originated, the FDA inspected only 3% of manufacturers in 2022 — significantly less than in 2019, when 45% of plants were inspected.

The FDA, which is tasked with ensuring the safety and efficacy of both prescription and over-the-counter drugs, has acknowledged that limited resources make it impossible to inspect every plant, whether in the U.S. or not, that makes drugs or their ingredients. But the agency has been slow to make improvements.

This is not the first time that American consumers have been injured or killed as a result of contaminated drugs produced overseas. In the 1980s, drugs manufactured in Italy intended to prevent seizures resulted in epileptic seizures and two deaths. In 2007 and 2008, hundreds had allergic reactions, some fatal, to a commonly used blood thinner, prompting an FDA investigation. Some of the cases were later linked to an ingredient produced in a facility in China that had never been inspected by the FDA.

The Government Accountability Office, a federal watchdog agency, has warned for decades that the number of overseas inspections was worryingly low. Just weeks before the first cluster of COVID-19 patients was reported in China at the end of 2019, the GAO reported that despite some improvements in how the FDA tracked and prioritized its efforts, inspections of both foreign and domestic drug plants were on the decline, due in large part to challenges retaining staff and filling vacancies.

“While our drug supply is generally safe, problems do occur, as evidenced by contaminated eye drops in the last few months,” said Mary Denigan-Macauley, director of public health at the GAO. “No one wants to lose their vision or an eye simply from taking eyedrops to alleviate dry eyes.”

Without a doubt, the COVID-19 pandemic slowed inspections to a trickle — in fiscal year 2021, according to the data, the agency inspected a mere 99 overseas sites, less than 4% of eligible foreign manufacturers. By comparison, 15% of domestic manufacturers were inspected that year. (Nearly three-quarters of manufacturers of U.S. drug ingredients, and more than half of producers of finished drugs, are located overseas.)

During the pandemic, the FDA began announcing domestic visits beforehand and paused surveillance visits overseas except for those deemed “mission critical,” conducting most preapprovals of new drugs without visiting foreign manufacturing sites.

The FDA defended this decision in an email statement to ProPublica, saying it used “alternative inspectional tools such as remote interactive evaluations, record requests, and leveraging information from trusted regulatory partners.”

Both the GAO and Rep. Sanford J. Bishop, a Georgia Democrat, say these remote interactions do not offer the same insight that in-person, unannounced inspections do. The FDA itself affirmed the utility of inspections in its latest annual report on pharmaceutical quality: “In the absence of inspections, many of these situations” that could result in defective products, “and possible public harm, could have gone undetected.”

But three years after the pandemic started, the FDA has been slow to return to pre-pandemic inspection rates. The pandemic heightened the urgency surrounding the FDA’s drug inspection process, as the need for more equipment, vaccines and antiviral medications, many of which are produced overseas, increased. Though routine domestic surveillance inspections resumed in July 2021, routine foreign inspections remained on hold until February 2022.

In December, President Joe Biden signed a year-end spending package that allocated $10 million for a pilot program to “increase unannounced foreign inspections” of drug makers. But that was just a tiny fraction of the $3.5 billion earmarked for all FDA drug quality oversight programs.

“We have got to be protective of the health, safety and welfare of the American people,” said Bishop, who pushed for funding for overseas inspections in the House. “That is the job of the FDA.”

Experts hope the pilot program will address standards surrounding those visits, which have drawn criticism for being too permissive. Unlike domestic inspections, foreign manufacturers were routinely given a heads-up before an inspection and allowed to provide their own translators, practices that FDA inspectors have admitted could make information gathered unreliable. The FDA said that it planned to use the additional $10 million to increase staffing for foreign inspections and to work on prioritizing inspections that the agency was unable to perform during the pandemic.

Among the foreign establishments never inspected was a Global Pharma Healthcare factory in Tamil Nadu that produced artificial tears sold by U.S. companies EzriCare and Delsam Pharma. As an over-the-counter product that does not require FDA approval, the eyedrops fell into another FDA regulatory blind spot. Though the FDA has the authority to inspect manufacturers of over-the-counter products before they are sold to consumers, there is no requirement that an inspection must occur prior to the sale — unlike for prescription drugs.

The FDA is asking Congress to require that manufacturers notify the FDA of their intent to distribute over-the-counter drugs well in advance of selling them, potentially providing the FDA a “feasible opportunity” to conduct inspections.

But even that requirement might not have made much of a difference. According to the GAO’s 2022 report on FDA foreign inspections, a growing backlog of manufacturers slated for routine surveillance inspections is skewing in a concerning direction. The percentage of overseas manufacturers that hadn’t been inspected within five years, or which have never once been inspected, has grown from 30% in 2020 to more than 80% in 2022. And if the FDA prioritizes sites that have not been inspected recently, that might come at the expense of inspecting sites identified by the FDA as posing the highest public health risk.

Preventing future public health risks, like the ongoing eyedrop outbreak, has to be a priority, said Denigan-Macauley of the GAO.

“These problems are not hypothetical. They are real,” she said.

In the case of the imported tainted eyedrops, in January, the FDA and the Centers for Disease Control and Prevention traced back the Pseudomonas aeruginosa outbreak to the Global Pharma Healthcare-produced EzriCare Artificial Tears. That same month, the FDA requested records from the manufacturer regarding an unrelated issue and, concerned by Global Pharma’s “inadequate response,” placed it on an import alert, preventing its products, including the eyedrops, from entering the U.S. In early February, the FDA recommended a recall of the EzriCare and Delsam Pharma eyedrops, though it waited weeks to finally conduct an on-site inspection, only to find multiple sanitary and safety issues. The companies did not respond to a request for comment, though in a February press release EzriCare said that it was cooperating with the CDC and FDA. Global Pharma has said to The New York Times it is “fully cooperating with U.S. federal authorities.”

by Will Sennott and Anastasia Lennon, The New Bedford Light

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

Last May, Tommy Beaudreau touted the potential of renewable energy sources like offshore wind to an audience that included some of his government colleagues and former industry clients.

“This industry, this group of people in the room today, really are the key to unlocking that clean energy future,” Beaudreau, the deputy secretary of the U.S. Department of the Interior, proclaimed at a conference hosted by the American Clean Power Association, a lobbying group largely funded by offshore wind developers.

Just one year earlier, Beaudreau had been a corporate lawyer, earning part of his $2.4 million income from offshore wind developers. Then he was appointed to regulate the industry he was previously paid to represent. During Beaudreau’s tenure, developers including several of his former clients have gained preliminary or final approvals for an unprecedented expansion of offshore wind, despite repeated warnings from federal scientists about potential harms to marine life and the fishing industry.

While the Trump administration put roadblocks in the path of offshore wind development, the Biden administration is fast-tracking clean alternatives like wind and solar to expand domestic energy production and slow the pace of climate change. In the next decade, 3,411 turbines and 9,874 miles of cable are slated to be built across 2.4 million acres of federally managed ocean.

Beaudreau is part of a revolving door between the government and offshore wind. Much as the Trump administration had a pipeline to and from oil and natural gas companies, in recent years at least 90 people have shuttled between federal, state or local government and the offshore wind industry, a ProPublica/New Bedford Light investigation has found. They range from rank-and-file bureaucrats to top policymakers like Beaudreau.

Deputy Secretary of the Interior Tommy Beaudreau (Hyoung Chang/The Denver Post/Getty Images)

“It’s not uncommon, but it’s not good government,” said Brett Hartl, director of government affairs for the Center for Biological Diversity, a conservation group. “Wind is better than oil and gas, but that doesn’t mean we should cut corners. Giving them an easier path than they deserve means that someone else is going to pay the price.”

Apparently left out of this cozy relationship is one keenly affected group: more than 1 million people in the U.S. who work in the seafood industry, including 158,811 commercial fishermen. Fishermen have been shouldering longer hours and more expenses as private equity takes over their industry. Now, they are grappling with the prospect that offshore wind farms will box them out of fishing areas and further imperil their livelihoods.

For generations, East Coast fishermen have plied the same waters where turbines the height of 70-story skyscrapers will soon be spinning. The Atlantic’s Outer Continental Shelf is comparatively shallow, making it easier to anchor turbines deep in the ocean floor. Steady winds blow through the entire year. But it’s also along the shelf’s ridges that currents mix and sunlight penetrates, allowing microorganisms and fish to flourish in a complex ocean ecosystem.

Federal scientists, the commercial fishing industry and industry regulators each have sounded the alarm about potential harm to fish spawning habits and about the lack of compensation for losses suffered by fishermen who will be displaced by the offshore wind industry. The Interior Department has ignored or downplayed those warnings.

The U.S. Bureau of Ocean Energy Management, which is part of the Interior Department, and the U.S. National Marine Fisheries Service, which is part of the Commerce Department, have conflicting authority over the same stretches of federal waters. BOEM oversees permitting and leasing for offshore wind development, from which the federal government reaped more than $5 billion last year. NMFS is supposed to protect marine habitat and ensure that the fishing industry is both sustainable and economically viable.

“We are very concerned about the cumulative impacts of multiple wind energy projects on the fisheries we manage,” directors of three federally established regional councils that advise NMFS wrote last fall to Amanda Lefton, then the head of BOEM.

Lefton said last October that she wants to ensure that “not only can the commercial fishing industry and offshore wind coexist but that both industries can thrive.” The American Clean Power Association has run advertisements with a similar message.

Yet on paper, BOEM has been less sanguine. A May 2021 decision published by BOEM greenlighting the 800-megawatt Vineyard Wind project south of Martha’s Vineyard, which will be the first large-scale offshore wind farm approved for construction, conceded that there will be “negative economic impacts to commercial fisheries” and that, while fishermen will be allowed to fish within the boundaries of the wind farm, “it is likely that the entire 75,614 acre area will be abandoned by commercial fisheries.” The document was signed jointly by BOEM, NOAA and the Army Corps of Engineers. Eight months later, in response to federal lawsuits accusing it of circumventing environmental protection, the agencies walked back their prediction that fishermen would abandon the area.

In January, Lefton left BOEM to join Foley Hoag, a law firm that has represented Vineyard Wind. There, she said in a press release, she will “leverage” her “experience in policy and regulation at the state and federal levels with the private sector to help businesses get projects built.”

Beaudreau and an Interior Department spokesperson, Tyler Cherry, declined to comment. Mike Moses, a spokesperson for Foley Hoag, said that Lefton complied with all ethics rules as a government official and that she has “an unwavering commitment to continue to do so moving forward.”

The future of wind power and the plight of fishermen are colliding in New Bedford, Massachusetts, an industrial city an hour south of Boston. The components to build turbines for Vineyard Wind, which started offshore construction last November, will be shipped from the Port of New Bedford, which is also the top-earning commercial fishing port in the nation. It supports almost 15,000 jobs and moves between 390 and 544 million pounds of seafood a year from its waterfront to consumers around the world.

“The great majority of the people who rely on going out to fish will be squeezed out of the industry,” said Scott Lang, a former mayor of New Bedford and an attorney who for four decades has represented many of the city’s commercial fishermen. “This is going to be the final nail.”

A groundfish vessel docked at New Bedford harbor (Tony Luong for ProPublica)

The year was 2008, and U.S. Sen. Ted Kennedy was sharing a drink with Alan Solomont, then a health care executive and former national finance chair for the Democratic National Committee, at the senator’s vacation retreat on Cape Cod. It was a calm night, barely a breeze, Solomont recalled. As they looked out at the inky blackness of the Nantucket Sound, where developers were seeking permission to build the first wind farm off the East Coast, Kennedy told Solomont disdainfully, “And they want to build a factory out there.”

Though Cape Wind was a relatively small project by today’s standards, the Kennedys and other prominent families who didn’t want their scenic vista disturbed succeeded in quashing it. At the time, “the climate was not seen as the crisis we understand it to be today,” Solomont recalled.

Since then, the political winds, so to speak, have shifted. Offshore wind has evolved from a novelty opposed by powerful insiders to a political juggernaut that enjoys widespread support. Solomont himself is betting on its future. After serving as U.S. ambassador to Spain, he now sits on the board of Avangrid — a subsidiary of a Spanish renewable energy company that owns half of the Vineyard Wind development. He owns about $380,000 worth of Avangrid shares.

The U.S. has a “willing public sector that understands the importance” of offshore wind, “both to the environment and also to the economy,” Solomont said. “There is very little downside to this, and huge upside. Massachusetts is positioned to be a hub for the offshore wind industry. That means jobs. It is, in many respects, reminiscent of the early stages of biotech.”

BOEM has fostered this transformation. Following the Deepwater Horizon oil spill in 2010, the Obama administration established BOEM to handle energy leasing and development across federally managed oceans. Its first director was Tommy Beaudreau, who oversaw the early framework for offshore wind regulation and leasing. BOEM also redrew development zones to move them farther offshore, which prevented residents from seeing the turbines, but also drove development into a different backyard — that of the commercial fishing industry.

In contrast to Kennedy, another Democratic senator from Massachusetts, Ed Markey, emerged as a key proponent of offshore wind as a way to boost the state’s economy and reduce U.S. dependence on fossil fuels. He supported what he regarded as the Biden administration’s efforts to make up for time lost when the Trump administration stalled permits for offshore wind. He crafted tax incentives for offshore wind manufacturers, which were a priority for the industry’s lobbying group, and which were ultimately adopted in the 2022 Inflation Reduction Act. Markey was a featured speaker at an American Clean Power conference on offshore wind in 2021.

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Offshore wind was becoming more popular not just in Washington but also at the state level. Developers in Massachusetts began securing electricity contracts with state utilities in 2018 — locking project commitments into the Massachusetts power grid long before the developments had cleared environmental reviews or permitting.

Wind’s supporters in government flocked to join the burgeoning industry. Matt Beaton headed the Massachusetts Executive Office of Energy and Environmental Affairs when it approved a power purchase agreement with Vineyard Wind to distribute 800 megawatts of offshore wind energy. Beaton then joined consulting firm TRC Companies in 2019. According to its website, TRC provided “environmental siting and permitting support” for Vineyard Wind.

In a 2021 interview, Beaton said there’s an inevitable trade-off between energy production and environmental impact. “At the end of the day, I’m a natural resource guy. I’m a conservationist,” he said. “We don’t want to harm our environment.” At the same time, he added, “there is going to be some need for development.”

Beaton’s successor at the state energy office, Katie Theoharides, oversaw agreements with Vineyard Wind and SouthCoast Wind. Last year, she left government to head East Coast offshore development for international energy company RWE.

Beaton and Theoharides did not respond to requests for comment.

In late February, a 393-foot barge chugged around the eastern tip of Martha’s Vineyard. It was laying heavy cables into two 50-mile-long trenches, which will plug Vineyard Wind’s turbines into the state’s power grid.

Dug up to 8 feet into the ocean floor, the trenches mark the first ocean ground broken on a large-scale offshore wind farm. Starting this year, 62 turbines will be raised, slightly more than a mile apart, each as high as 837 feet, taller than the John Hancock Tower, the tallest building in Boston. Below the surface, each turbine will be supported by 197- to 312-foot-tall steel piles, each up to 34 feet wide, according to Vineyard Wind’s approved construction plans.

Vineyard Wind was the first of two wind farms on the East Coast to gain final approval from BOEM for construction. The second is South Fork Wind, located about 35 miles east of Montauk, New York.

BOEM approved the projects despite repeated warnings from the National Marine Fisheries Service about damage to the environment and the fishing industry.

Environmental laws require BOEM to consult with the fisheries service on projects taking place in “essential fish habitat,” which encompasses all offshore wind projects within 200 miles of the coast.

Fisheries regulators have been warning BOEM since 2018 about the impact of offshore wind projects. “The multiple wind energy projects planned along the east coast will have cumulative and compounding effects on our fisheries,” the three regional fishery councils on the East Coast wrote in last summer’s letter to the head of BOEM. They added that the “effects will increase in magnitude as more projects are built.”

For Vineyard Wind, fisheries scientists outlined how repeated blasts from pile driving into the ocean floor can cause “fish kills.” The sound wave impact, which can be felt underwater from as far as 50 miles away, can cause a “cumulative stress response” that disrupts the ability of fish to feed or spawn. Suspended sediment on the ocean floor kicked up by construction could also harm fish, and digging long and deep trenches to connect turbines to shore by cable would result in “permanent loss of juvenile cod” habitat.

But BOEM has the final say. It doesn’t have to heed the service’s recommendations, and it has largely ignored them.

Tensions over Vineyard Wind culminated in 2019, when NMFS disagreed with a key step in BOEM’s permitting. NMFS said BOEM’s environmental review “does not analyze the stated concerns raised by NMFS and the fishing industry.”

In response, BOEM’s chief environmental officer, William Yancey Brown, wrote that the concerns “do not rise to the level that would justify the likely extensive project delays and potential failure of the project.” Those delays, he added, “might prevent Vineyard Wind from qualifying for a federal investment tax credit.” He threatened to issue the environmental permit without NMFS support.

By the time BOEM approved Vineyard Wind for construction in July 2021, BOEM had downplayed the urgent concerns raised by the fisheries service. Its final environmental impact statement said that pile driving would cause “short-term, minor impacts,” effects of laying cables would “likely be negligible,” and the harm to marine life would be “minor.”

Twenty miles west of Vineyard Wind, South Fork Wind wants to undertake a smaller project, with 12 turbines generating about one-sixth the overall power. But the impact on fisheries habitats there is expected to be far worse, according to NMFS scientists.

South Fork Wind spans Cox Ledge, a spawning ground for Atlantic cod and 25 other species vital to the marine ecosystem and commercial fishing. Turbine locations for the project “may result in cascading long term to permanent effects to species that rely on this area for spawning,” a fisheries administrator cautioned BOEM. He added that the habitats “may take years to decades to recover.”

South Fork developers were more explicit than BOEM about the risks of turbine construction. “Intense sound pressure waves” may result in “injury or mortality caused by rupturing swim bladders or by internal hemorrhaging,” the developers wrote in their approved construction plans. Pile driving has the “potential to interrupt migration patterns” for fish.

Nevertheless, BOEM concluded that “considerable uncertainty remains” about the project’s impact. The “available evidence to date suggests that the effects of long-term habit alteration from wind development on finfish are generally beneficial,” BOEM stated in August 2021, writing that the construction on Cox Ledge “could result in beneficial, neutral, or potentially negative effects.” In January 2022, BOEM approved South Fork Wind to begin construction.

“It’s frustrating that there aren’t clear requirements to avoid an impact to these habitats,” said Michelle Bachman, a fishery analyst studying habitat and offshore wind, who led the research on South Fork Wind for the NMFS regional office. “There isn’t much we have the ability to do.”

General Electric's Haliade-X wind turbine at Rotterdam Harbor in the Netherlands, 2020. The Haliade-X is the same model that will be installed at Vineyard Wind. (Ilvy Njiokiktjien/The New York Times/Redux)

Both Vineyard Wind and South Fork Wind have enjoyed a key advocate: Beaudreau.

After leaving government during the Trump administration, Beaudreau became a partner at the law firm Latham & Watkins. He represented major offshore wind firms, including Vineyard Wind and Ørsted, the developer behind South Fork Wind. Beaudreau also worked with Avangrid Renewables — one of two partners behind Vineyard Wind — on “environmental and permitting matters” for another offshore wind project, The Washington Post reported.

Beaudreau’s potential conflicts of interest dwarf those of David Bernhardt, a former fossil fuels lobbyist who served as deputy secretary and secretary of the Interior Department in the Trump administration. Bernhardt has said he carried a list of 22 former clients with him so he could avoid conflicts. In Beaudreau’s financial disclosures, he reported working for 35 clients during the Trump administration, including 10 companies with offshore wind developments.

Beaudreau “has very deep conflicts,” said Hartl, of the Center for Biological Diversity. The Interior Department, he said, “is under enormous political pressure to accelerate this industry. He is driving that.”

Nevertheless, Beaudreau sailed through. The U.S. Senate confirmed him in June 2021 by an 88-9 vote. In a letter read aloud by Sen. Joe Manchin, the West Virginia Democrat who chairs the Senate Committee on Energy and Natural Resources, former Obama administration interior secretary Sally Jewell lauded Beaudreau’s “pragmatic knowledge of how to get things done.”

Beaudreau promised to recuse himself from decisions directly affecting former clients for two years. Still, emails show he and Lefton, who as head of BOEM reported to him, scheduled joint meetings with executives of offshore wind companies — including one with the then-head of the American Clean Power Association and another with a past chief executive of Avangrid.

The Interior Department did not respond to questions about what was discussed at the meetings.

“There is nothing that leaves the Interior Department that doesn’t have to first cross the desk of the deputy secretary,” said a former high ranking Interior official, who requested anonymity to avoid jeopardizing his career prospects. “It is a position that makes it very difficult to avoid any conflicts of interest.”

In Denmark, where the first offshore wind farm was built in 1991, a law mandates that fishermen be compensated for loss of income when other ocean users take up fishing grounds. According to the Danish Energy Agency, an offshore wind project will “necessarily” have an impact on fisheries in the area, and so it is essential to have a legal framework to address it.

By contrast, the U.S. hasn’t figured out how to compensate fishermen whose livelihood may be damaged. So far, the federal government has left the issue of compensation to developers. Some have offered one-time payments to the fishing industry. Vineyard Wind has committed about $21 million for Massachusetts fishermen, and South Fork Wind $2.6 million. But developers say they are financially squeezed by supply chain issues and proposed limits on turbine locations for the protection of whales. They don’t want their contracts with the government to build in additional payments for damages that may be attributed to their projects: the loss of historic fishing grounds, lost or wrecked gear and increased risk of accidents as vessel radar systems are disrupted.

In 2020, commercial lobsterman Vincent Damm made two trips to sea to bait his traps and discovered that more than a dozen were missing. Checking a vessel tracking chart, he saw that a survey vessel working with wind developer Ørsted had traveled directly over his gear.

He applied to Ørsted for compensation for his loss, which he valued at $3,900 and an independent consultant put at $1,800. Under Ørsted’s procedures, three people review fishermen’s claims: Two are Ørsted employees, and the third is a paid consultant for the company.

Ørsted concluded that its survey vessels were not at fault. On one occasion, the panel said, Ørsted’s vessel came no closer than half a mile from Damm’s traps. The other survey vessel followed the same track as Damm’s trawl, but equipment that could have snagged his gear wasn’t deployed. Ørsted also said other fishing vessels traveled near or over Damm’s gear.

Damm was never compensated and had to pay for new lobster pots. “I’m not going to lose sleep over it,” he said. “But if they do it now, they’re just going to keep doing it to someone else.”

Ørsted spokesperson Meaghan Wims said that the company does not comment on individual claims. It has received “very few claims for lost or damaged gear,” she said.

While the federal government has required oil and natural gas companies to compensate fishermen for damages for decades, BOEM lacks regulatory authority to do the same for damages from offshore wind projects. It has signaled off and on since 2014 that it will consider offering guidelines for compensation, but they have yet to be officially released.

A working group convened by BOEM early in 2022 discussed how to quantify economic losses for fishermen from offshore wind development. Notes of early meetings, obtained through a public records request, warned that habitat losses “would have direct impact on fishing.” But after BOEM’s lead biologist recommended toning down the language, the group’s final report said that offshore wind development “could” impact commercial fishermen and their revenue.

Last August, the New Bedford Port Authority wrote to BOEM, challenging what it described as “equivocal” language in the draft guidelines: “There is not one single entity, including BOEM, that reasonably thinks that such payments will not be necessary, so why is BOEM still using uncertain language in that instance?

“We strongly believe that the ‘burden of proof’ must lie with developers to prove to the fishing community that they are not causing environmental or economic harm.”

Markey has announced a plan to use funds from wind lease sales to establish a national compensation fund, though the legislation has not yet been filed. Markey’s office has received technical assistance from BOEM and NOAA in drafting the bill. “The long-term success of the offshore wind industry will depend on its ability to coexist not only with marine life but with the economic life of our commonwealth, including ports, fisheries, eco-tourism, and more,” Rosemary Boeglin, spokesperson for Markey, said in a statement.

Even if a national fund is authorized, it won’t be easy to calculate the cumulative economic loss for commercial fisheries. The task is complicated by inconsistent research methods used by developers, a lack of long-term studies and BOEM’s failure to conduct a comprehensive analysis of offshore wind lease areas off the New England coast.

“We’re building this ship as we’re sailing it,” NMFS scientist Andrew Lipsky said last October at a conference on wind power. “When we don’t think through the science, we often get ourselves in trouble.”

This month, a nearly 400-page report released by BOEM, NMFS and a fishing industry group said that the proliferation of wind farms is likely to impede regulators from collecting on-site data on the health of fish stocks. The lack of such information will result in “greater uncertainty” and “lost revenue to commercial and recreational fishermen,” the report said.

Fishermen worry that the lack of information on economic impact will favor developers in future negotiations over compensation. They also say the potential losses are a sum they never wanted to calculate in the first place.

“Fishing is my way of life. How do you put a price on somebody’s way of life?” Maine lobsterman Matt Gilley told wind developers, state and federal officials during a Zoom meeting in December. “There is no monetary compensation that will ever make it right.”

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Gabriel Sandoval contributed research.

Correction

April 21, 2023: This story originally omitted the names of two agencies that also signed on to a report conceding there would be negative economic impacts to fisheries. The document was produced with the Army Corps of Engineers and NOAA Fisheries, not solely by the Bureau of Ocean Energy Management.

by Brett Murphy

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Senior prosecutors in one of New York’s largest counties have known for years that drunk driving convictions of Spanish-speaking motorists may have been tainted by faulty evidence. But the Westchester District Attorney’s Office failed to investigate until defense attorneys contacted the unit that reviews wrongful convictions.

From at least 2014 to 2018, records show, New York State Police troopers gave some drivers mistranslated instructions about what it means to refuse a blood alcohol test. Legal experts, including three former prosecutors in Westchester, told ProPublica that those incorrect directions could, at a minimum, confuse or mislead drivers and may have pressured some into a decision that resulted in severe consequences.

Westchester prosecutors were alerted to the issue at least three times, in 2018, 2019 and 2021, records show.

“These are folks that are wrongfully convicted,” said Joseph Margulies, a government and law professor at Cornell University. He and others said the district attorney’s office — currently led by Miriam Rocah, who was elected in 2020 — should have been investigating every case that may have included the forms since its prosecutors became aware of the faulty instructions.

Rocah declined requests to discuss what steps she’s taking to address the issue. Spokesperson Jin Whang said the office’s conviction review unit received a list of 263 DWI arrests from the police in February 2022. “We’re still combing through paper,” she said, acknowledging progress has been slow due to the unit’s small staff and more urgent priorities, compounded by tangled police records. Whang added that prosecutors recently decided, amid questions from ProPublica, that they will consider moving to vacate sentences.

When a driver suspected of being drunk refuses a chemical test for alcohol in their system, police in New York, like in many other places, are required by law to explain that the motorist’s license will be suspended, whether or not they are found guilty, and that their refusal can be used as evidence against them. A chemical test typically measures blood alcohol content in someone’s breath, blood or urine.

But some state police troopers in Westchester told Spanish-speaking drivers something different. Officers in Troop K gave those motorists a sheet of paper that described a refusal as tantamount to being found guilty for driving drunk. It told drivers that authorities “will punish you as being guilty” for not taking the test — which is a significant departure from the actual law, which only states the refusal can be used as evidence against them. The warning also falsely stated that officers “are going to examine your blood,” instead of requesting that drivers take the test, which is often a Breathalyzer.

ProPublica consulted with Spanish-language and legal authorities at five universities, who said the mistranslated warning had several deeply flawed passages.

Counterclockwise from top: An accurately phrased warning given to motorists about the consequences of refusing a blood alcohol test; an English translation of the Spanish version that was given to drivers who didn’t speak English; and the mistranslated Spanish version that drivers received, which included several confusing and incorrect passages that do not exist in the original English warning. (Highlighted by ProPublica)

“It looks like they’re really coercing a ‘yes,’” said Amber Baylor, a law professor at Columbia University who reviewed some of the records. She said immigrant drivers may feel especially susceptible to that kind of pressure given the potential consequences: “your job going up in flames, losing your livelihood, being separated from your family or losing your ability to stay in the country.”

In an email statement, Beau Duffy, a state police spokesperson, said the form “was not an official document that was created, distributed or approved” by the agency, which means it cannot easily be tracked in department records. He said he didn’t know when the Spanish warning was first used or where it had come from but said it is no longer in circulation.

“We believe they were used only in Westchester County,” Duffy said, adding that the state police do not currently issue written refusal warnings in Spanish. The agency tells troopers who don’t speak Spanish to use a telephone translation service contracted by the department.

It’s unclear how many drivers have been impacted. For context, state police troopers arrested at least 56 Hispanic motorists on drunk driving charges in Westchester last year and 79 in 2021, according to state court data. (The state does not maintain local court records from previous years.) The data does not indicate whether or not those drivers spoke only Spanish. Around 65,000 adults in Westchester speak Spanish and limited or no English, according to U.S. Census Bureau estimates.

Whang said prosecutors didn’t believe that it was fair to cast all convictions involving the mistranslated form as wrongful.

But blood alcohol content is typically the linchpin of successful prosecutions. Legal experts compared the pre-test warning to a Miranda warning, which allows suspects to make informed decisions. “That’s why we have a process,” said Cornell’s Margulies.

Whang said the conviction review unit, which Rocah created shortly after she took office, first learned about the translation issue in late October 2021, when defense attorneys with the Legal Aid Society asked for help getting a list of potentially affected DWI cases from Troop K.

The unit received information on about 260 arrests made between 2010 and 2019 and has so far reviewed 44 of them, according to Whang, all of which resulted in a conviction. Five of those 44 cases involved the mistranslated form. Prosecutors have not yet notified the attorneys in those cases. But Whang said the DA’s office intends to do that and to come up with a “remedial course of action” once the conviction review unit has gone through the remaining cases.

She noted that there are only three attorneys in the unit, which is independent from the rest of the office and typically focus on cases of egregious misconduct and those where someone may be exonerated by new evidence, including DNA.

In November 2018, a defense attorney for a Hispanic motorist accused of drunk driving discovered the mistranslated warnings and brought them to the attention of Livia Rodriguez, who was a senior assistant district attorney at the time and still holds that role. Rodriguez told a judge she thought the issues were valid and offered reduced charges, according to a transcript of the hearing.

It’s unclear if Rodriguez alerted her superiors or the state police at that time. She declined ProPublica’s request for an interview and referred questions to Whang, who said she had no comment about how Rodriguez handled the situation at the time.

The faulty forms appeared during a hearing in 2019 as part of another of Rodriguez’s prosecutions. Defense attorney James Timko noticed the incorrect language and told the court that his client’s refusal should be inadmissible. “The police have ‘muddied the waters’ by providing a defendant a woefully inartful, inaccurate and affirmatively misleading statement,” he wrote in a court filing.

In an interview with ProPublica, Timko said, “It was a disaster.”

Still, the judge allowed the driver’s refusal into evidence because, she said, he understood English well enough during his 2017 arrest that it didn’t matter whether the Spanish warning was defective.

Timko wrote an email to Michael Borrelli, the DWI coordinator for the district attorney at the time, and said the judge’s ruling would likely be reversed on appeal because the refusal warnings were so badly mistranslated. Borelli agreed and offered less serious charges.

“It wasn’t even close,” Borrelli said in an interview. “Even someone with a fourth grade Spanish would have been like, ‘What?’”

Borrelli said he told state police personnel there that he never wanted to see those forms used again. (Duffy, at the state police, said the department had no documentation of that conversation and could not find anyone who recalled it.) “I’m sure I reported it up the chain of command and I’m sure I got orders,” Borrelli added, but he did not remember any internal effort at the DA’s office to look at past cases that may have been affected.

Whang was also not aware of any such effort at the time. “We cannot speak for the decision making — the why or the how — prior to this administration,” she said, noting that Rocah took office in early 2021.

Two years went by before the issue surfaced a third time. Katie Wasserman, a defense attorney with Legal Aid in Westchester, told the court in July 2021 that the state police had given the wrong translation to another driver in a case that dated back years. Duffy told ProPublica that by then the forms were no longer in use.

“The District Attorney’s Office is aware of the improper warning as it had been brought to their attention on at least two documented occasions in 2018 and then again in 2019,” Wasserman wrote in the filing. The driver didn’t have correct information when he decided to refuse the test, Wasserman argued, so his refusal should not have been allowed to be used against him during the plea negotiations.

“I would never have made the decision to plead guilty to a misdemeanor,” the driver, who has other drunk driving convictions, wrote in an affidavit. He wrote that he feared he may get deported and be permanently separated from his family as a result of the conviction.

In the months that followed, senior officials in the DA’s office held a series of meetings about how to handle the problem. Whang said the conviction review unit didn’t learn of the issue until Wasserman called the division’s chief, Anastasia Heeger, in late October to ask for help getting information from the state police about other cases impacted by the faulty forms. “After [Heeger] got the call, she immediately said, ‘Yes I’ll join you,’” Whang said.

Wasserman said in an interview that too much time has elapsed since then and something substantive should have happened by now. “It’s just not a priority,” she said. “Truth is, they've been sitting on it.”

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by Anna Clark

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As bright green plumes of toxic algae spread over Lake Erie in the summer of 2014, suffocating one of the largest lakes on earth, reporter Dan Egan was there. He had arrived in Toledo, Ohio, to investigate what had sickened the water — and how treatment plants might not be able to purify it.

Indeed, that’s exactly what happened. The day after he returned home to Wisconsin, Toledo warned people to stop drinking, boiling or bathing in tap water. Ohio’s governor declared a state of emergency. And Egan soon published an expansive report in the Milwaukee Journal Sentinel about how we got to a place where people living by such an abundant source of life-giving freshwater could not drink it or even touch it.

As the Journal Sentinel’s Great Lakes reporter for nearly 20 years, where he was twice a finalist for the Pulitzer Prize, and now writing magazine stories, Egan has long explored the tension between people and place. From invasive species to the multibillion-dollar recreational fishing industry to Chicago’s fraught relationship with Lake Michigan, he serves as a watchdog for the massive inland seas. The narrative power of his first book, “The Death and Life of the Great Lakes,” helped it reach a wide audience. A New York Times bestseller, it won both the Los Angeles Times Book Prize and the J. Anthony Lukas Award.

Egan’s new book, “The Devil’s Element: Phosphorus and a World Out of Balance,” tells the urgent story of the 13th element to be discovered. (It’s the 15th element on the periodic table.) The unchecked flow of phosphorus into our waterways — often from farm runoff — contributes to “dead zones” and toxic algae blooms. At the same time, as an essential ingredient in fertilizer, phosphorus turns vast swaths of land green, nourishing crops and animals. It makes life possible for billions of people.

Phosphorus, he writes, isn’t only essential to us; it is us. It’s found in our bones, teeth, even our DNA. In the naturally replenishing cycle, animals eat phosphorus-rich plants and then return the element to the soil when they defecate or die and decay. The soil then grows the next generation of plant life. Thanks to the remnants of long-dead organisms, phosphorus is also found in rare caches of sedimentary rocks on ancient seabeds. But in the 19th century, humans figured out how to break the cycle — systematically taking rocks, guano and even bones from one place to fertilize the soil of another place. Today, the world’s food supply depends on diminishing phosphorus reserves in places like Bone Valley, Florida, and the Western Sahara. At the same time, excess phosphorus from both plant and animal farms spills into our water and spoils it.

Dan Egan (Mike De Sisti/Milwaukee Journal Sentinel)

Egan’s reporting takes him not only to the Great Lakes, which hold about a fifth of all the freshwater on the face of the planet, but also to Germany, where an alchemist first isolated the combustible element and where traces of phosphorus cast down by World War II firebombers still wash ashore — with alarming results. We follow him to the saltwater beaches of the Mississippi Gulf Coast, once thought safe from the telltale shock of green, and to Ontario’s Experimental Lakes Area, where scientists discovered the connection between phosphorus and algae, much to the chagrin of detergent makers of the era. Along the way, Egan explores the Clean Water Act’s “yawning exemption” for agriculture and how some scientists fear we’ll hit “peak phosphorus” in a few decades.

Egan, now the Brico journalist in residence at the Center for Water Policy in the University of Wisconsin-Milwaukee’s School of Freshwater Sciences, spoke with ProPublica about phosphorus, algae and the perils and possibilities of book-length journalism. This interview was edited for length and clarity.

You’ve spent nearly 30 years covering environmental stories, first in Idaho and Utah and then at the Milwaukee Journal Sentinel. What are the earliest stories you remember writing about toxic algae blooms?

I come at this without a background in science or environmental studies. But being out in Idaho, I was thrown to the wolves, literally, because wolf reintroduction was a huge issue. I also covered salmon recovery and grizzly bear recovery. That was a crash course in environmental journalism.

But I don’t remember writing about algae until 2014. I was in Toledo the week before they lost their water, doing a story on what would happen if Toledo lost their water.

What did you come across in your reporting that surprised you?

When I was writing about the algae blooms in Lake Erie, I was mostly reading about the algae blooms. I was just introduced to phosphorus along the way. I didn’t put much of it in my first book. But the idea that we need rocks to sustain modern agriculture — somebody was saying, “Yeah, it comes out of Florida, it comes up on trains to the various fertilizer factories.” “Rocks? Any rocks?” “No, special rocks.”

And then, the whole stuff about grinding bones and spreading them on crops. I wasn’t bored writing this book, I will tell you that.

Can you share more about how phosphorus is uniquely lethal and life-giving?

What really caught my eye was how phosphorus doesn’t exist on its own in the environment. It’s always bound with oxygen atoms to make phosphates, which are stable, or noncombustible. But when they first isolated pure phosphorus in the late 1600s, it was magical stuff. It got above 80 Fahrenheit, and it just burst into flames and will not stop. Nothing will stop it. I guess you saw this in the book — a guy that’s burned goes into the water, and then he comes out of the water, and it flares up again.

And then you see that it was used as a weapon. But it’s also this essential fertilizer. Of the three big [elements in] fertilizers — nitrogen, potassium and phosphorus — phosphorus is the limiting [or least available] element.

There’s this paradox of how we’re just squandering these relatively scarce deposits and at the same time we’re overdosing our waters to the point where sometimes you can’t drink them, you can’t swim in them, it kills dogs, it threatens people.

How does the nuance here compare to our relationship with other materials that have proved vexing, such as lead, or PFAS, or even the vinyl chloride recently unleashed on East Palestine, Ohio?

With any toxin or element that we exploit and pollute the environment, there was a reason we did it. But phosphorus is so essential and also just so potentially harmful. Managing this stuff was hard enough when we had a billion people, but now we’re zooming toward 9 billion.

We need to change the way we’re using this, or there’s two consequences, and they’re not exclusive. We’re going to poison the crap out of our waters, or we’re going to run out of easily accessible deposits and have food shortages.

That’s the story. There’s a lot unfolding fast here. And I think it’s only going to accelerate.

What is slowing people down in restoring what you call “the virtuous cycle” of phosphorus?

It’s probably the agriculture lobby. They know there’s a problem, but it’s not being adequately addressed or we wouldn’t have these chronic blooms in every state in the union.

As far as slowing down people, I don’t know. It’s just not something people talk about. People would ask, “Are you writing another book?” I’d say, “Yep.” “What’s it about?” “Phosphorus.” And they’d look at me like I just told them I was diagnosed with something really bad.

And these are your book fans, asking what you’re writing next!

That alone is daunting. On the other hand, when you start telling people about how we mined the battlefield of Waterloo for all the [human] bones to grind them up to throw them on crops to grow turnips in England? That gets people’s attention.

There’s so much that goes into modern food production that we’re just divorced from. There’s been books written about this, and very good books, but I don’t think anybody has written a book for popular consumption that connects the dots between the food on a table and the poisoned waters. And also the lengths we’ve gone to find this precious substance that nobody thinks about.

Your book discusses a number of 20th century wins, such as the revival of Lake Erie after it was virtually declared dead and the pushback against the detergent industry’s overuse of phosphorus. Do you see a blueprint here for how to tackle problems with phosphorus today?

It’s useful to look at when we first tangled with phosphorus as a pollutant in the 1960s and ’70s and solved the problem, largely by banning phosphates in detergents. But it’s not entirely applicable. Today it’s a much bigger problem. It’s more diffuse. When we could plug a pipe or cap a smokestack to stop the pollutants, that’s easy. But now that it’s spread on the landscape, we’ve got these legacy phosphorus deposits. They’re going to be leaching into the water for decades. Even if we clamp down on CAFOs [concentrated animal feeding operations] tomorrow, there’s so much inertia in the system. It’s like climate: Things are going to get worse before they get better.

But it’s also important that we do look back and see that we have been successful. And we also have an obligation to just try. We have a chance to make things better for future generations. We should take advantage of it.

Before we leave off, is there any part of the book that you’d like to underline? Water or fertilizer, mining or politics, what would you like to make sure gets through to the public?

It’s a deep question and requires something of a deeper answer. But I think it’s the circle of life. It’s not just “The Lion King.” It’s real. And the thing that stitches it together in this case is phosphorus. We’ve got to learn that you don’t use it and chuck it. You use it again and use it again and use it again and use it again, if we’re going to stay fed and have waters that are safe enough to fish in and swim in and drink from and have your pets play in. This book is about the circle of life, manifested in phosphorus.

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by Ken Armstrong

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

A second police officer has pleaded guilty to a federal civil rights charge filed in response to a 2018 investigation of the criminal justice system in Elkhart, Indiana, by the South Bend Tribune and ProPublica. His conviction is the latest development in the extensive fallout from the news organizations’ reporting on the city’s policing.

Joshua Titus had been scheduled to stand trial next week. But he instead entered a plea of guilty late last month to a felony charge of violating the civil rights of a man in police custody. Both Titus and fellow officer Cory Newland had been captured on video repeatedly punching the man, who was handcuffed to a chair in the police station’s detention area, as other officers stood nearby.

The two news organizations exposed the 2018 beating after the Tribune filed a records request for the video. Newland pleaded guilty to a federal civil rights charge last year and was sentenced to 15 months in prison. Titus is scheduled to be sentenced in July, according to court records.

Titus, reached by phone Thursday, said when asked about the case, “You’ll have to speak with my attorney about that, bud.” Titus’ attorney declined to comment. Newland’s attorneys wrote in an email: “Cory long ago accepted full responsibility for his conduct. His statement to the court at sentencing was perhaps one of the most reflective, thoughtful, and compelling statements ever provided under such circumstances. It is clear to us and to all who know Cory, that his conduct was not representative of his true heart and character as a person.”

As part of ProPublica’s Local Reporting Network, the Tribune and ProPublica investigated wrongful convictions, questionable convictions, dubious investigative practices and a lack of police accountability in Elkhart, a city best known nationally for the manufacture of recreational vehicles. The investigation revealed that of the police department’s 34 supervisors, 28 had disciplinary records and seven had opened fire in at least one fatal shooting. (“That’s high. That’s high,” one criminal justice expert said of the number of fatal shootings by Elkhart police. “I don’t know what kind of place this Elkhart is.”)

In the wake of the newsrooms’ joint investigation:

The city’s police chief was suspended for 30 days. Then he resigned.

The city’s mayor abandoned his reelection campaign.

The city commissioned an outside study of its police force, which found that officers were viewed in the community as “cowboys” who engage in “rough treatment of civilians.” The 97-page study criticized the department’s lack of accountability and its “vague and non-descriptive” use-of-force reports. The study also said the department suffered from a “trust deficit,” fueled by reports of officers driving or firing guns while intoxicated; being abusive to residents; and blaming camera malfunctions for critical police interactions going unrecorded.

Keith Cooper, a man wrongly convicted of an armed robbery in Elkhart, received $7.5 million in a record settlement with the city, which apologized for its handling of his case. (The settlement was reached in 2022; the two news organizations profiled the troubling police work in Cooper’s case in 2018.)

The main investigator in Cooper’s case was a police detective who had been forced to resign because of sexual misconduct with an informant. But the city had failed to disclose the details of his misconduct for more than 10 years. After the city disclosed the long-missing records in 2019, the former detective died in an apparent suicide.

After the news organizations published the video of Titus and Newland beating the handcuffed man, the U.S. Department of Justice, in 2019, secured indictments against the two officers. Those indictments, an FBI special agent said in a statement, “send a clear message that the FBI won’t tolerate the abuse of power or victimization of citizens by anyone in law enforcement. The alleged actions by these individuals went against everything in the oath they took to serve and protect.” The Justice Department declined to comment on their convictions.

by Caleb Bedillion and Taylor Vance, Northeast Mississippi Daily Journal

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

Poor defendants in Mississippi are routinely jailed for months, and sometimes even years, without being appointed an attorney due to the state’s notoriously dysfunctional public defender system. The Mississippi Supreme Court now says this practice must end.

The state’s highest court approved a mandate on Thursday that criminal defendants who can’t afford their own attorney must always have one before an indictment.

Across the state, defendants facing felony charges lose their appointed attorneys after their initial court appearances, where a judge rules whether they can be released from jail before trial. In many counties, defendants aren’t appointed new lawyers until they’re indicted, a process that can take years. Justice system reformers call this gap the “dead zone.”

In the Mississippi Delta’s Coahoma County, Duane Lake spent almost two years behind bars without bond and without an attorney while waiting to be indicted on triple murder charges following a brutal killing. After he was indicted, he spent four more years in jail before he was acquitted at trial in November 2021.

There are others like him, trapped in a system that leaves defendants who can’t afford their own attorneys with no advocate to ask a judge to reduce their bonds or dismiss their cases as they wait in jail to be indicted. Meanwhile, prosecutors face no deadlines to bring cases before a grand jury.

“There is no other state where a defendant can be sitting in jail without an attorney for months or years while charging decisions are made,” said David Carroll, executive director of the Sixth Amendment Center, which studies how states provide indigent criminal defense.

Several years ago, at the request of a task force appointed by the Mississippi Legislature, the Sixth Amendment Center evaluated the state’s indigent defense services. In a highly critical report, the group proposed a number of reforms, including stronger state oversight of how local governments provide public defenders.

The Legislature shelved the report and the task force’s recommendations, even as criminal justice reformers identified defendants like Lake who sat in jail for years facing charges that didn’t hold up.

But in February, a three-member committee of the Mississippi Supreme Court requested public comments on a proposed change to the state’s rules of criminal procedure. It would require that defendants who can’t afford their own attorneys be represented the entire time they’re awaiting indictment.

The Supreme Court approved the rule change Thursday. It takes effect in July.

“This landmark change in Mississippi’s public defense system marks the end of the dead zone and is a huge step toward a criminal legal system that doesn’t unfairly punish people who are unable to afford an attorney,” said Cliff Johnson, who as director of the MacArthur Justice Center’s Mississippi office has long argued for such a change.

But researchers like Pam Metzger, director of the Deason Criminal Justice Reform Center at Southern Methodist University in Texas, say simply requiring the assignment of an attorney will do little to improve legal representation for poor defendants.

“It’s giving you a warm body and briefcase,” she said of the rule. “But it doesn’t deal with what in my view is the real problem,” which is that people spend too long in jail before they’re indicted.

Current and former public defenders have also cautioned that Mississippi’s decentralized justice system will make it hard to implement the Supreme Court’s new rule.

The amended rule prevents an appointed attorney representing an indigent client at any stage of criminal proceedings from withdrawing until another attorney is appointed. Right now, this provision applies only after an indictment.

It was proposed in May by Russ Latino, who was then executive director of the conservative think tank Empower Mississippi. His request sat for nearly 10 months until the Supreme Court’s criminal procedure committee invited feedback and set a March 15 deadline for responses.

A raft of ideologically diverse legal activists, attorneys and policy advocates responded by urging the court to adopt the amendment.

“No just or useful purpose is served by allowing such incarceration without benefit of legal counsel,” wrote Brad Pigott, who served in the 1990s as one of Mississippi’s U.S. attorneys. “Certainly no legitimate law enforcement purpose is thereby served.”

”We’ve Got People Languishing in Jail”

Across Mississippi, some people without attorneys have spent months or longer in jail waiting for an indictment.

After prisoners in eastern Mississippi’s Lauderdale County jail filed complaints, a federal judge ordered the county in 2016 to provide him with a list of all people held in jail without indictments and without lawyers.

“Something needs to be put in place to make sure someone doesn’t fall through the cracks in this way,” said U.S. District Judge Carlton Reeves, according to an Associated Press story.

On the state’s Gulf Coast, an autistic teenager was arrested in 2018 on burglary charges and spent more than 270 days in jail because his family didn’t post a $10,000 bond. The charges were ultimately dropped after a grand jury declined to indict him.

The Wayne County Sheriff’s Office, in southeast Mississippi’s Pine Belt region, reported that 24 of 31 prisoners in the jail as of the end of September had not been indicted, including 13 who had been in jail 90 days or longer. Only six of these 13 had lawyers as of September, according to the report.

One person without a lawyer had been jailed for about six months awaiting indictment on a drug possession charge, according to the report.

Of those 13, only one is still in jail and hasn’t been indicted as of this week, said Kassie Coleman, the district attorney for Wayne County.

Gregory J. Weber, a part-time public defender in Madison County, said he sees delays with many cases, particularly drug charges.

“We’ve got people languishing in jail and nothing is being done,” Weber said in an interview before the Supreme Court acted. For defendants with a private attorney, “something usually is done about it. There is a bond reduction, or they get into drug court and they plead. So we’ve definitely got a problem with people falling through the cracks.”

Lawyers Aren’t Only Factor in Long Jail Stays

Even as Carroll, of the Sixth Amendment Center, called the change an important first step, he cautioned that because indigent defense is handled by local court systems, “the state still has no oversight function to make sure that the court rule gets implemented.”

The Sixth Amendment Center has found that in counties without full-time public defender’s offices — which is most of them — the payment structure discourages public defenders from doing extensive work on behalf of their clients.

In most counties, attorneys are paid a flat fee, no matter how many indigent clients they are assigned. That incentivizes attorneys to spend little time on indigent clients so they can take on those who can pay, the center argued.

Nor does the new rule spell out how defendants will be transferred between appointed counsel working for different court systems and different local government bodies. “I think it needs to be delineated much more clearly about when the handoff occurs and who is responsible for that person,” Weber said.

But better payment structures and effective administrative procedures won’t change a key factor in long jail terms: Prosecutors have unlimited time to indict and prosecute someone after they’ve been arrested.

“We’re really focused in Mississippi on the charging time,” said Metzger, who has studied this phase of criminal proceedings in courts across the country.

She said it would be more effective to institute deadlines for indictment, mandatory bail hearings and early disclosure of evidence.

Even when lawyers are appointed early on, such as in Yazoo County, defendants still spend months or years in jail.

Defense attorneys in the county have filed almost 100 motions since 2019 seeking to reduce bonds or dismiss charges. Many of those defendants had spent a year or more in jail while waiting to be indicted.

John Paul Thornton was arrested by Yazoo City police on Dec. 3, 2018, and charged with two counts of commercial burglary involving a local dollar store. Over a year later, Thornton was still in jail and had not been indicted.

Belinda Stevens, an attorney who works part-time as a public defender in Yazoo County, filed a motion on Thornton’s behalf in January 2020, seeking a dismissal of the case and claiming that his constitutional right to a speedy trial had been denied. Stevens didn’t respond to requests for comment.

A month later, prosecutors dropped the case. A judge signed an order, and Thornton walked free the next day after 436 days in jail.

Agnel Philip contributed reporting.

by Alec MacGillis

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

In the hallway outside the public advocate’s office in New York, on the 15th floor of the monumental David N. Dinkins Manhattan Municipal Building, a metal sign on the wall states that the office has walk-in hours from 10 a.m. to 4 p.m., Monday to Thursday. But the door is locked, and a paper sign on it has a contradictory message: “The Office of the Public Advocate is operating on a hybrid schedule and is only receiving constituents with an appointment.” Visitors are instructed to send an email or call a number if they want assistance.

The sign on the door is not a holdover from some earlier stage of the coronavirus pandemic. It reflects the ongoing practice of the office, a 55-person agency with a budget just under $5 million that serves as a sort of ombudsman for residents seeking assistance with city services or regulations. Public Advocate Jumaane Williams, first elected to the office in 2019, has decided for the foreseeable future to require employees to work in-person only two days per week, and the agency is therefore limiting public access to the actual office. “We’re modeling the hybrid,” said Kevin Fagan, its deputy communications director. “We’ve been calling on the city to adopt hybrid models where possible, to do remote work for health purposes and because that’s the way of the workforce right now, so that’s how we’re operating here at this point.”

The constriction of public access is especially striking for an agency that has “public” in its title, and it has drawn some criticism locally, but it is hardly unique at government offices and other public buildings around the country. Three years after the arrival of the pandemic led to widespread shutdowns, as daily activity has returned to pre-pandemic norms in most realms — from travel to schools to retail to the arts — the provision of government services and access to public spaces remains limited in many places.

In some instances, government offices and public agencies simply have taken their time in lifting pandemic-era provisions. For instance, the Chicago Transit Authority, like some other agencies, still asserts that freedom of information requests will take longer than usual to complete because of the health emergency. The Oakland City Hall only last month reopened itself to the public. And the Philadelphia library system only recently restored weekend hours at some branches.

But in other cases, as with the New York public advocate’s office, the reduction of direct interface between members of the public and the people being paid to work on their behalf represents a new normal. The diminishment of access isn’t driven by budget cuts; many agencies are in fact flush with funding as a result of the federal government’s pandemic recovery spending.

Rather, the shift is being driven by government officials seeking to accommodate a workforce that is as reluctant to give up the remote-work option as are many counterparts in the private sector. Elizabeth Whitehouse, chief public policy officer at the Council of State Governments, said that government officials are grappling with a labor shortage caused by an aging workforce, a skills gap and uncompetitive pay levels that the temporary surge of federal funds does little to address. As a result, she said, government supervisors feel they have little choice but to offer flexible work arrangements as an inducement to hire and retain. “The overall state workforce shortages are a significant barrier as states grapple with how to provide access to services and public spaces,” she said.

The result is that some public buildings that citizens used to be able to enter to seek help or resolve a problem now present a locked door or security desk requiring an appointment. For government workers, it can be easier not to have to deal with the public in an unmediated way, with all the unexpected demands and drama that can come with that.

But with less direct interaction, provision of services can suffer, warns Paul Light, a professor of public service at New York University. “You’ve got to have human contact for a lot of these positions,” he said. “This is not a time for shutting down access. It’s when you want state and local governments to show they’re ready and open for business.”

“Lots of people want that contact, and it’s not good for the body politic to lose it,” Light added. “State and local government need to think about what they’re doing for their future base of support by cutting off direct contact.”

The cutbacks are impeding important functions. Take, for example, the process for obtaining a license as a building contractor in Maryland. The Maryland Home Improvement Commission, which oversees that process, has shifted its activities mostly online. Contractors report monthslong delays in renewing licenses, putting them at risk of liability for working without a valid license.

Seeking assistance in person is easier said than done. Some information online still lists the commission’s address as being on Calvert Street in Baltimore, but a handwritten sign at the locked door at that address directs people to the Maryland Department of Labor building on Eutaw Street, a mile away. At that building, a sign states that visitors need an appointment to enter, and a security guard rebuffs anyone who tries to come in otherwise.

One contractor, who spoke on the condition of anonymity because he feared putting his license at risk, said that after he finally managed to make an appointment online, the MHIC employee was late in arriving for it and wouldn’t let the contractor into the building, making him wait in the lobby while the employee took the application upstairs.

A department spokesperson, Maria Robalino, said that the appointment requirement “ensures the appropriate staff is available to assist the customer in a timely manner” at a time when the department is requiring employees to work in-person only part time, on average three days per week. MHIC, she added, is “fully staffed, but we believe the demand for services is greater than the staff we have in place, which may be the reason why we have service delays. We are diligently working to find solutions to this staffing issue.”

Similarly, the Baltimore Department of Housing and Community Development shifted during the pandemic to an online system for building permits, but that system has been experiencing frequent technical troubles and is being revamped. When contractors go to the permit office downtown, they encounter a much different scenario than before the pandemic, when more than a dozen employees received applicants at a series of booths. On a recent Thursday, only three of the permit office’s 18 employees were working there, and the big “Permit Information” desk where visitors used to start the process was completely empty, with a dozen stacks of paper spread out on a counter with instructions on how to file an application online.

One electrician, who did not want to give his name, said that the experience had gotten much worse since before the pandemic, and that he now often waited two to three hours at the building. “Before,” he said, “they had more employees, so there were more chances of being helped.” The online system is “very tough, very slow,” he said. “And if you try to call them, to coordinate an application or speed up an application, it’s not going to happen; you’re not going to talk to anyone.”

Tammy Hawley, a spokesperson for the department, said it was aware of the problems with the online system and hoped to roll out a new one early next year. “We own the system functionality issues that we ourselves want improved,” she said. “We want a system that is more user-friendly for everyone and are well on our way to accomplishing that.” As for the long waits for those who come for in-person assistance, she said, “The permit office is open every day, but we do have a large portion of our workforce teleworking.”

In some cases, the reduction of access at public buildings is a product of both the pandemic and security concerns that grew out of the rise in civil unrest in recent years. In Richmond, Virginia, it was possible before the pandemic for the public to walk into City Hall through doors on all four sides of the building. There was a deli on the ground floor and an observation deck on the top of the building, 18 floors up, where anyone could go for a sweeping view of the city, and where city agencies and civic groups sometimes held events.

But in 2020, as protests swirled over the murder of George Floyd by a Minneapolis police officer and over Richmond’s decision to remove Confederate monuments, Mayor Levar Stoney started receiving threats. The city decided to give him a security detail. And as Richmond started to reopen access to City Hall as the threat of the pandemic ebbed, it was on much different terms. Today, members of the public can come in only through one of the four entrances; they have to go through a metal detector; and they need an appointment to go to any offices other than the ground-floor counter for paying tax bills. “It’s a more procedural sort of access,” said a city spokesperson, Petula Burks. She declined to specify what the in-person work requirement was for city employees. “We’re still working through our policies,” she said.

And with access to the building restricted, the observation deck remains off-limits to the public. This is unfortunate, said Justin Doyle, a member of the city’s Urban Design Committee, who used to bring visitors up to the deck or simply meet his wife there for occasional lunches at one of the picnic tables. “It really was a public space,” he said. “There was nothing else like it in Richmond.”

Security issues have also played a role in further limiting access to the public advocate’s office in New York. Several weeks ago, the Department of Citywide Administrative Services, which manages the building, locked the door leading from the elevators on the 15th floor to the hallway that includes the office. According to a DCAS employee, this decision was made after an intern with another agency was attacked by a member of the public who became agitated after finding the public advocate’s office closed. Around the same time, she said, another frustrated member of the public had a screaming tantrum in the bathroom. Sealing off the whole floor is a move intended “to keep our employees safe,” the DCAS employee said.

Fagan, the public advocate’s office spokesperson, said that if citizens do manage to reach the locked door of the office, they can ring the buzzer in the hallway, and if there are staff members available, they may offer assistance, despite the sign on the door requiring an appointment.

If citizens do succeed in entering the office, they will discover an environment that feels frozen in time, reflecting how little now happens there. On a recent Thursday afternoon, the desks sat mostly empty. In the waiting area stood a large hand-sanitizer dispenser and an air purifier. On the small table in the waiting area sat some reading material: New York magazine’s “Reasons to Love New York” issue from December 2019.

by Justin Elliott, Joshua Kaplan and Alex Mierjeski

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

In 2014, one of Texas billionaire Harlan Crow’s companies purchased a string of properties on a quiet residential street in Savannah, Georgia. It wasn’t a marquee acquisition for the real estate magnate, just an old single-story home and two vacant lots down the road. What made it noteworthy were the people on the other side of the deal: Supreme Court Justice Clarence Thomas and his relatives.

The transaction marks the first known instance of money flowing from the Republican megadonor to the Supreme Court justice. The Crow company bought the properties for $133,363 from three co-owners — Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed dated Oct. 15, 2014, filed at the Chatham County courthouse.

The purchase put Crow in an unusual position: He now owned the house where the justice’s elderly mother was living. Soon after the sale was completed, contractors began work on tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home, which looks out onto a patch of orange trees. The renovations included a carport, a repaired roof and a new fence and gates, according to city permit records and blueprints.

A federal disclosure law passed after Watergate requires justices and other officials to disclose the details of most real estate sales over $1,000. Thomas never disclosed his sale of the Savannah properties. That appears to be a violation of the law, four ethics law experts told ProPublica.

The disclosure form Thomas filed for that year also had a space to report the identity of the buyer in any private transaction, such as a real estate deal. That space is blank.

“He needed to report his interest in the sale,” said Virginia Canter, a former government ethics lawyer now at the watchdog group CREW. “Given the role Crow has played in subsidizing the lifestyle of Thomas and his wife, you have to wonder if this was an effort to put cash in their pockets.”

Thomas did not respond to detailed questions for this story.

In a statement, Crow said he purchased Thomas’ mother’s house, where Thomas spent part of his childhood, to preserve it for posterity. “My intention is to one day create a public museum at the Thomas home dedicated to telling the story of our nation’s second black Supreme Court Justice,” he said. “I approached the Thomas family about my desire to maintain this historic site so future generations could learn about the inspiring life of one of our greatest Americans.”

Crow’s statement did not directly address why he also bought two vacant lots from Thomas down the street. But he wrote that “the other lots were later sold to a vetted builder who was committed to improving the quality of the neighborhood and preserving its historical integrity.”

ProPublica also asked Crow about the additions on Thomas’ mother’s house, like the new carport. “Improvements were also made to the Thomas property to preserve its long-term viability and accessibility to the public,” Crow said.

Ethics law experts said Crow’s intentions had no bearing on Thomas’ legal obligation to disclose the sale.

The justice’s failure to report the transaction suggests “Thomas was hiding a financial relationship with Crow,” said Kathleen Clark, a legal ethics expert at Washington University in St. Louis who reviewed years of Thomas’ disclosure filings.

There are a handful of carve-outs in the disclosure law. For example, if someone sells “property used solely as a personal residence of the reporting individual or the individual’s spouse,” they don’t need to report it. Experts said the exemptions clearly did not apply to Thomas’ sale.

The revelation of a direct financial transaction between Thomas and Crow casts their relationship in a new light. ProPublica reported last week that Thomas has accepted luxury travel from Crow virtually every year for decades, including private jet flights, international cruises on the businessman’s superyacht and regular stays at his private resort in the Adirondacks. Crow has long been influential in conservative politics and has spent millions on efforts to shape the law and the judiciary. The story prompted outcry and calls for investigations from Democratic lawmakers.

In response to that reporting, both Thomas and Crow released statements downplaying the significance of the gifts. Thomas also maintained that he wasn’t required to disclose the trips.

“Harlan and Kathy Crow are among our dearest friends,” Thomas wrote. “As friends do, we have joined them on a number of family trips.” Crow told ProPublica that his gifts to Thomas were “no different from the hospitality we have extended to our many other dear friends.”

It’s unclear if Crow paid fair market value for the Thomas properties. Crow also bought several other properties on the street and paid significantly less than his deal with the Thomases. One example: In 2013, he bought a pair of properties on the same block — a vacant lot and a small house — for a total of $40,000.

The block in Savannah, Georgia, where Texas billionaire Harlan Crow bought property from Supreme Court Justice Clarence Thomas. Today, the vacant lots Thomas sold to Crow have been replaced by two-story homes. (Octavio Jones for ProPublica)

In his statement, Crow said his company purchased the properties “at market rate based on many factors including the size, quality, and livability of the dwellings.”

He did not respond to requests to provide documentation or details of how he arrived at the price.

Thomas was born in the coastal hamlet of Pin Point, outside Savannah. He later moved to the city, where he spent part of his childhood in his grandfather’s home on East 32nd Street.

“It had hardwood floors, handsome furniture, and an indoor bathroom, and we knew better than to touch anything,” Thomas wrote of the house in his memoir, “My Grandfather’s Son.”

He inherited his stake in that house and two other properties on the block following the death of his grandfather in 1983, according to records on file at the Chatham County courthouse. He shared ownership with his brother and his mother, Leola Williams. In the late 1980s, when Thomas was an official in the George H.W. Bush administration, he listed the addresses of the three properties in a disclosure filing. He reported that he had a one-third interest in them.

Thomas was confirmed to the Supreme Court in 1991. By the early 2000s, he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as “rental property at ## 1, 2, & 3” in Savannah. He valued his stake in the properties at $15,000 or less.

Two of the houses were torn down around 2010, according to property records and a footnote in Thomas’ annual disclosure archived by Free Law Project.

In 2014, the Thomas family sold the vacant lots and the remaining East 32nd Street house to one of Crow’s companies. The justice signed the paperwork personally. His signature was notarized by an administrator at the Supreme Court, ​​Perry Thompson, who did not respond to a request for comment. (The deed was signed on the 23rd anniversary of Thomas’ Oct. 15 confirmation to the Supreme Court. Crow has a Senate roll call sheet from the confirmation vote in his private library.)

Thomas’ financial disclosure for that year is detailed, listing everything from a “stained glass medallion” he received from Yale to a life insurance policy. But he failed to report his sale to Crow.

First image: Thomas’ signature on the deed for his deal with Crow. Second image: A 2014 photograph shows the vacant lots that Crow bought from Thomas. (First image: Chatham County Superior Court. Second image: Chatham County Metropolitan Planning Commission.)

Crow purchased the properties through a recently formed Texas company called Savannah Historic Developments LLC. The company shares an address in Dallas with Crow Holdings, the centerpiece of his real estate empire. Its formation documents were signed by Crow Holdings’ general counsel. Business records filed with the Texas secretary of state say Savannah Historic Developments is managed by a Delaware LLC, HRC Family Branch GP, an umbrella company that also covers other Crow assets like his private jet. The Delaware company’s CEO is Harlan Crow.

A Crow Holdings company soon began paying the roughly $1,500 in annual property taxes on Thomas’ mother’s house, according to county tax records. The taxes had previously been paid by Clarence and Ginni Thomas.

Crow still owns Thomas’ mother’s home, which the now-94-year-old continued to live in through at least 2020, according to public records and social media. Two neighbors told ProPublica she still lives there. Crow did not respond to questions about whether he has charged her rent. Soon after Crow purchased the house, an award-winning local architecture firm received permits to begin $36,000 of improvements.

Drawings illustrate some of the improvements made to Thomas’ mother’s home after Crow bought it. (Obtained by ProPublica)

Crow’s purchases seem to have played a role in transforming the block. The billionaire eventually sold most of the other properties he bought to new owners who built upscale modern homes, including the two vacant lots he purchased from Thomas.

Crow also bought the house immediately next door to Thomas’ mother, which was owned by somebody else and had been known for parties and noise, according to property records and W. John Mitchell, former president of a nearby neighborhood association. Soon the house was torn down. “It was an eyesore,” Mitchell said. “One day miraculously all of them were put out of there and they scraped it off the earth.”

“The surrounding properties had fallen into disrepair and needed to be demolished for health and safety reasons,” Crow said in his statement. He added that his company built one new house on the block “and made it available to a local police officer.”

Today, the block is composed of a dwindling number of longtime elderly homeowners and a growing population of young newcomers. The vacant lots that the Thomas family once owned have been replaced by pristine two-story homes. An artisanal coffee shop and a Mediterranean bistro are within walking distance. Down the street, a multicolored pride flag blows in the wind.

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

by Lisa Song, Kiah Collier and Maya Miller

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

The Environmental Protection Agency proposed a series of major reforms this past week to slash toxic air pollution at chemical plants and facilities that sterilize medical equipment, nearly 18 months after ProPublica reported how an estimated 74 million Americans were exposed to elevated cancer risk from these businesses.

The first set of rules place stricter limits on roughly 80 air pollutants, according to EPA Administrator Michael S. Regan. The list includes potent cancer-causing chemicals such as ethylene oxide, which is used to sterilize medical equipment, and chloroprene, an ingredient in synthetic rubber. The proposal, which would affect more than 200 manufacturers, requires routine air monitoring around these chemical plants, something local communities have long requested.

Regan announced the first wave of changes last Thursday at a press conference in St. John the Baptist Parish, Louisiana. The area falls within an 85-mile stretch along the Mississippi River known as “Cancer Alley” due to its concentration of industrial polluters, many of which are located near communities of color.

“For generations, our most vulnerable communities have unjustly borne the burden of breathing unsafe, polluted air,” Regan said in a statement. “Every child in this country deserves clean air to breathe, and EPA will use every available tool to make that vision a reality.”

The EPA declined to make any agency employees available for an interview.

Environmental experts said the proposal is a huge step forward. The updated rules impose stricter health standards for emissions of chloroprene and ethylene oxide to reduce the risk of cancer residents face when they breathe pollution from chemical plants. The proposal also would require facilities to fix leaks and install devices to limit emissions from smokestacks, storage tanks and other equipment. If the new rules are adopted, the number of residents near these facilities who would be exposed to unacceptable cancer risk ultimately would drop by 96%, the EPA said.

“This is a very big announcement” that targets the largest and most hazardous chemical manufacturers, said Adam Kron, an attorney at Earthjustice. The group sued the EPA years ago to force them to update these rules in a more timely manner.

Beverly Wright, executive director of the Deep South Center for Environmental Justice, said in a statement that this was “the most significant rule I have seen in my 30 years of experience working in Cancer Alley.”

The American Chemistry Council, an industry trade group, said that it was reviewing the proposed new rules but signaled it was concerned about aspects related to ethylene oxide. “Overly conservative regulations on ethylene oxide could threaten access to products ranging from electric vehicle batteries to sterilized medical equipment,” the group wrote on its website. “We support strong, science-based regulations for our industry. But we are concerned that EPA may be rushing its work on significant rulemaking packages,” it added. “We will be engaging closely throughout the comment and review process.”

In 2021, ProPublica published a unique analysis of cumulative cancer risk from industrial air pollution nationwide. Using emissions data reported by the companies, we found that in some parts of Louisiana’s Cancer Alley, the added lifetime cancer risk from these chemicals was up to 47 times what the EPA considers acceptable. Many residents who live near multiple facilities face unacceptable cancer risks from combined emissions, yet the EPA rarely considers cumulative risk. Out of all the pollutants that the EPA regulates, ProPublica's analysis found, ethylene oxide is the most toxic, contributing to the majority of the excess cancer risk created by industrial air pollution in the United States.

Our work spurred reform, including additional air monitoring, two state cancer studies and the EPA’s rejection of a less stringent health standard for ethylene oxide. Weeks after we published our series, Regan said the agency would conduct a series of unannounced EPA inspections of major polluters. The EPA’s new proposed rules, though, go even further.

The agency’s proposal also requires many facilities to conduct air monitoring and make the resulting data publicly available. On top of limiting emissions of 80 pollutants, chemical plants for the first time would monitor for six chemicals — benzene, ethylene oxide, chloroprene, vinyl chloride, ethylene dichloride and 1,3-butadiene — at the fence line, or perimeter, of their facilities. If annual averages exceeded EPA guidelines, the companies would need to find and repair any leaks that were likely to have caused the excessive emissions.

Scott Throwe, a former EPA air pollution expert who now works as a consultant, said the EPA could have gone further by requiring direct, continuous monitoring of toxic air pollutants at the vents, smokestacks and other outlets where emissions are released.

Fence line monitoring only tells you that something is leaking, he said, and doesn’t help you identify the exact piece of equipment responsible. These facilities are so large that each plant may have thousands of potential leaky spots. “They’re not going to find it in five minutes and slap some Silly Putty on the leak and call it a day,” he said. If the EPA required direct monitoring at the source, he added, it would be much easier to pinpoint the culprit.

Despite the drawbacks, fence line monitoring could give regulators a new, straightforward tool to crack down on polluters. A neoprene manufacturer in LaPlace, Louisiana, has faced years of enforcement action from state and federal agencies, yet continues to emit high levels of chloroprene. The chemical can cause liver or lung cancer. Local emissions are so high that the EPA urged state regulators to evacuate students from the nearby Fifth Ward Elementary School last fall. The students have not been moved.

The plant, owned by Denka Performance Elastomer, already has chloroprene monitors at more than 20 locations along its perimeter. The new EPA proposal would regulate chloroprene concentrations at the fence line for the first time, using 0.3 micrograms per cubic meter as a limit. When annual concentrations exceed that, companies would need to reduce their emissions.

The data around the Denka plant from January 2022 to January 2023 shows that nearly all of the monitors exceeded this new proposed threshold. Monitors close to the school showed levels up to five times the limit. Denka didn’t respond to a request for comment. In February, the U.S. Department of Justice sued the company on behalf of the EPA to compel Denka to cut chloroprene emissions. Denka has denied many of the allegations and in a counterclaim said the EPA’s conclusions about the high cancer risks posed by chloroprene are “dead wrong.”

The new EPA rules don’t just apply to facilities that make chemicals. A second EPA proposal, announced Tuesday, would require 86 facilities across the country that use ethylene oxide for sterilizing medical supplies or fumigating spices to install equipment to reduce emissions of the cancer-causing gas. The EPA estimated the rule would reduce ethylene oxide emissions from the facilities by 80%. Both EPA proposals are open for public comment and could be finalized by next year.

Tuesday’s proposal is based on the latest EPA science on ethylene oxide. In 2016, the agency concluded the chemical was 30 times more carcinogenic to people who continuously inhale it as adults and 50 times more carcinogenic for those who are exposed since birth than the agency previously thought. Industry representatives have described the EPA’s conclusion as extreme and overly protective.

The prior regulations for sterilizing facilities were based on outdated scientific studies. The agency was supposed to review the rule for possible revision in 2014 and 2022, but missed both deadlines. A coalition of environmental groups, including the Laredo, Texas-based Rio Grande International Study Center, sued the EPA in December to speed up the timeline. The lawsuit is still pending. Laredo, a border city of 250,000, has been home to the most toxic commercial sterilizer in the country, according to the 2021 ProPublica analysis.

“Today, residents of Laredo are a step closer to breathing cleaner air,” said Laredo City Council member Vanessa Perez, who co-founded the Clean Air Laredo Coalition in 2021. “It’s the EPA’s mission to ensure our air is safe to breathe. We are relying on the EPA’s ruling to move the country in the right direction for environmental protection and justice.”

Owned by Missouri-based Midwest Sterilization Corporation, the Laredo plant released far more ethylene oxide on average than any plant of its kind in the country during the five-year period covered by ProPublica’s analysis.

In a statement, Midwest Sterilization said the company “sterilizes life-saving medical devices used in everyday medical procedures and surgeries.” The company said it “has been anticipating the proposed EPA rule and working hard to make changes ahead of its release to the public.” It added: “It’s important to note that most of the changes proposed by the EPA, have already been achieved by Midwest, or are currently being implemented.”

Environmental groups celebrated the release of the long-overdue proposal but also said it should be strengthened before it is finalized. They want the EPA to require fence line monitoring of ethylene oxide at sterilizing facilities (like the agency is proposing for chemical plants) and to expand the rule to cover emissions from off-site warehouses that also are a significant source of emissions. They also called for the EPA to phase out the use of ethylene oxide.

Last year, studies published by the Texas Department of State Health Services found that rates of three types of cancer associated with ethylene oxide exposure — breast cancer, all-age acute lymphocytic leukemia and extranodal non-Hodgkin lymphoma — were “significantly greater than expected” in Laredo given the population.

The ProPublica analysis found that the Laredo facility elevates the estimated lifetime cancer risk for nearly half of the city’s residents, including 37,000 children, to a level experts say is not sufficiently protective of public health. Among them is Yaneli Ortiz, who was diagnosed with acute lymphocytic leukemia in 2019. She had just turned 13 years old. Ethylene oxide should not be ruled out as a factor in Yaneli’s diagnosis given her proximity to the facility and its history of emissions, environmental health experts said, but it is impossible to definitively say whether exposure to the chemical caused her cancer.

After Yaneli underwent years of treatment that included a harrowing near-death experience, doctors recently told her and her parents that there are no signs of cancer in her body.

Still, Yaneli is dealing with the fallout from the side effects of her treatment, particularly from the havoc that the steroids wreaked on her hips, shoulders and knees. She underwent replacement surgery for her hip and left shoulder. Recently, her right shoulder has been hurting so much that the pain keeps her awake at night. Her mother anticipates that Yaneli will need at least two more surgeries to address the injuries. Nevertheless, she recently attended prom at Driscoll Children’s Hospital in Corpus Christi, where her cancer was treated. Now 16 years old, Yaneli spent a good part of the night dancing.

“It’s, like, a little bit of a relief,” Yaneli’s mother, Karla Ortiz, said when she heard the news about the proposed EPA rules. “It’s less risky for everyone else as well, so hopefully they won’t have to go through what we went through or other families went through.”

by Becca Savransky, Idaho Statesman, and Asia Fields, ProPublica

Leer en español.

In Idaho’s aging schools, students often wear jackets in the winter to keep warm in the classroom. In late spring, they sweat, struggling to concentrate. At some schools, bathrooms are regularly closed because of deteriorating pipes. At others, staff spend hours blowing snow off the roof to prevent its collapse.

State officials aren’t fully aware of the extent of the schools’ problems — the last full review of school buildings was done in 1993. It’s hard to repair even the problems that have been logged because in order to get funding for facilities, school districts in Idaho have to clear a higher bar than those in almost any other state.

The Idaho Statesman and ProPublica looked at the conditions inside one school, which has been in disrepair for decades. Now we want to report on school building conditions across the state and how they affect you. Photos and videos of issues in your school are especially helpful and will guide our reporting.

You can fill out our brief form below or send an email to idahoschools@propublica.org.

We may not be able to respond to everyone, but we read each submission. All of your contributions help fuel our work.

by Becca Savransky, Idaho Statesman, photography by Sarah A. Miller, Idaho Statesman

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

Do you have experience with Idaho’s public schools? Please get in touch.

Jan Bayer sank into the couch in the family room of her Bonners Ferry, Idaho, home and stared at her phone, nervously awaiting a call. Her twin teenage daughters were nearby, equally anxious.

It was election night in March 2022, and Bayer, the superintendent of the Boundary County School District in a remote part of Idaho on the Canadian border, had spent months educating voters about a bond that would raise property taxes to replace one of her district’s oldest and most dangerous buildings: Valley View Elementary School. Built just after World War II, the school was falling apart.

The walls were cracked. The pipes were disintegrating. The ceilings were water-stained. The electrical system was maxed out and the insulation was nearly nonexistent. Classrooms froze in the winter and baked in the summer. The roof, part of which had already collapsed once, was nearing the end of its lifespan. Outside, potholes pocked the parking lot and deep splits formed in warped sidewalks. The kindergarten playground, weathered from decades of brutal winters, had turned hazardous; at times, sharp screws protruded from some of the equipment, and kids routinely got splinters from the wooden crossbeams.

Most worrisome to Bayer and her staff: Kindergarten students had to cross a street multiple times a day just to navigate the sprawling six-building campus, a piecemeal attempt to add much-needed classroom space.

The bond promised to fix all that — if voters approved it.

“You’re just honestly praying for a miracle,” Bayer said. “I said a lot of prayers all day long, saying, ‘OK, we can do this. We can do this.’”

At about 8:30 p.m., a call came in from the county clerk. More than 2,000 people voted, and about 54% of them supported the bond, the clerk said. Bayer’s heart sank and she broke into tears. In Idaho, a majority wasn’t enough. The state is one of just two in the nation that require support from two-thirds of voters to pass a bond.

Bayer shared the results with the school board, school staff and the facilities committee. Over the next several hours, she received calls and messages from community members. They told her to keep fighting. So she did. The district put another bond on the ballot in August, and students rallied to support it. On Election Day, the high school football team even stood on the bridge over the Kootenai River and held yellow signs that read “Vote Yes for Kids,” hoping to persuade voters as they drove to the Boundary County Fairgrounds to cast their votes. But the second bond fared worse. Just over 40% of voters backed the new measure, which hit the ballot as residents received a notice that their property assessments were going to rise and voters were worried about tax increases. “It went down in a ball of flames,” Bayer wrote to the school board.

Boundary County School District Superintendent Jan Bayer points out that part of an exterior wall of a school building is made of glass blocks painted blue, which are not efficient for heating and cooling. The rest of the building is made of cinder blocks that came from a naval training station that was decommissioned in the 1940s.

No other state spends less on education per student than Idaho, according to a recent report from the U.S. Census Bureau, which surveys and ranks school finance systems. It also ranks last in the nation in terms of school infrastructure spending per pupil, a state report shows. So over the past several decades, rural districts across the state have faced the same challenge as Bayer: To improve or replace aging — and sometimes dangerous — facilities, they must appeal to local taxpayers and clear some of the nation’s most restrictive thresholds for school funding. Despite urgent needs, most of these efforts fail, an investigation by the Idaho Statesman and ProPublica has found. As a result, students across the state must learn amid dire conditions.

In one Idaho school, the foundation is crumbling. In another, so few bathrooms serve hundreds of kids that students have soiled themselves, according to school officials and local media. And in yet another, a portion of a roof recently failed during off-hours, sending water flooding into a classroom and bathrooms, destroying books and temporarily limiting learning space.

Since 2006, districts have mounted 217 bond attempts to remedy these types of problems and accommodate growing student populations. Had Idaho required only a majority of voters to support the measures — the threshold in most states — 83% of them would have passed. Instead, just 44% were approved, according to an analysis of bond measures and election data by the news organizations.

Like Boundary County, more than two dozen districts have tried to pass bonds and failed at least twice since 2006. Nine of those districts never succeeded during that time.

All of this matters not only for the safety and comfort of students but for their academic success. Research has shown that young people who learn in deteriorating or substandard facilities have worse educational outcomes than peers who learn in newer and functional buildings.

Superintendents say they have little choice but to patch up the issues they can see and hope it’s enough for now. But others fear that by trying to maintain buildings that need to be replaced, at best they’re wasting taxpayer dollars and at worst they’re risking an accident. “Do we keep putting a Band-Aid on something that’s broken?” said Troy Easterday, superintendent of the Salmon School District, which has tried and failed to pass a bond nearly a dozen times since 2005 in an effort to secure funding to build a new school. The district’s elementary school building, which is plagued by aging plumbing, uneven floors and a cracked foundation, is around 70 years old.

Education advocates and some lawmakers argue that the bond threshold should be lower.

By requiring support from two-thirds of voters, “you essentially allow the government to be operated through the tyranny of the minority,” said Mat Erpelding, a Democrat and former House minority leader who unsuccessfully tried to pass legislation in 2017 to start the process of lowering the threshold for passing bonds to 60%. Under that metric, about 62% of all bonds placed on the ballot since 2006 would have passed, compared to the actual passage rate of 44%, according to the Statesman-ProPublica analysis.

Some current legislative leaders, however, disagree with Erpelding’s assessment. “I think it needs to remain in place,” said state House Speaker Mike Moyle, a Republican who pointed out that the provision has been in the state’s constitution since its earliest days. “I think it’s a protection for the taxpayer.” And practically speaking, lowering the threshold would be difficult, requiring a constitutional amendment that would have to be approved by two-thirds of legislators and a majority of voters.

Gov. Brad Little has said he wants to invest more in education, and last year he signed a bill to allot $330 million to public education across Idaho. But much of that money will go toward increasing teacher pay and benefits as opposed to upgrading and replacing school facilities.

As a result, under the current system, rural districts like Boundary County continue to face a heavy fundraising burden; their communities are often poorer, smaller and less able to support tax increases than urban centers. At Valley View Elementary, for example, most students are from low-income families and about 10% are homeless, according to the State Department of Education. About three-quarters of the state’s districts are rural.

Boundary County covers a rural area at the top of the Idaho panhandle, along the Canadian border.

“If local taxpayers can’t afford to pay for those facilities, then those students have to do without and that does not meet the obligations put forward in the Idaho Constitution,” said Mike Journee, spokesperson for the state teachers union.

Connie Perez, who has taught at Valley View for more than three decades, said she does her best to adjust to the circumstances. But on some days, her mind drifts to the crack in the wall outside her fourth grade classroom. “That’s what scares me,” she said, “the big things that are going to happen.”

Decades of Legislative Neglect

As far back as 30 years ago, Idaho legislators were confronted with the state’s deteriorating schools. A statewide assessment funded by the Legislature found that districts needed nearly $700 million in repairs, expansions and upgrades. Seventy-one buildings were either deemed dangerous or had serious problems that needed immediate attention. In 1993, a member of the state facilities committee presented the findings to lawmakers. The Legislature, however, did little to address the issues.

A maintenance worker at Valley View Elementary points out a crack in a classroom support beam.

Valley View Elementary in Boundary County was one of those schools that were labeled as needing immediate attention. And without an influx of funds, things got worse.

Three years after the state assessment, the school’s gym roof collapsed during winter break, when students were home. The region had gotten slammed with a major snowstorm, and the building couldn’t handle the additional weight. No one was injured, but the staff was shaken. “It’s something you don’t want to ever see again, especially when you have kids,” said Bob Overman, the former maintenance director for the district, who had just walked out of the gym when the roof caved in. “It used to worry me all the time.”

Meanwhile, elsewhere in Boundary County, administrators struggled with overcrowded schools. Voters had previously rejected three bond measures for new facilities, so students temporarily had to go to school in shifts: high school in the mornings and middle school in the afternoons and evenings. It was a strain on parents, especially those who had kids in different grade levels.

In 1999, six years after the statewide facilities assessment, then-Gov. Dirk Kempthorne took another look at the schools. Of the 71 buildings in the worst shape, 18 had been shuttered and 53 remained in service. At the facilities still in use, the “average building condition score” had declined, meaning they still had problems that needed immediate attention, according to an update to the facilities report. Even some buildings that underwent renovations, like Valley View, which had to replace the portion of the building that collapsed, did not see changes in their overall scores.

Two buckets hang inside the ceiling at Valley View to collect water from leaking pipes.

Although the Legislature made some funding changes in the 1990s, in 2001 a judge presiding over a school funding case took issue with the state’s reliance on bonds, finding that a “system based upon loans alone is not adequate to meet the constitutional mandate to establish and maintain a general, uniform, and thorough system of public, free common schools.” Citing prior rulings, the court said that mandate includes providing a “safe environment conducive to learning.”

The following year, Kempthorne advocated improving school building safety and lowering the threshold for passing bonds, according to Idaho Statesman reporting. “It’s time to solve this problem,” he said.

In 2005, the state Supreme Court weighed in, agreeing with the lower court’s finding that the state’s funding system for school facilities was unconstitutional. It noted the struggles of several districts that had failed to clear the two-thirds bar to pass a bond, despite making multiple attempts.

While the court did not prescribe specific remedies, it told the Legislature that it was lawmakers’ responsibility to ensure that school facilities are properly funded.

Over the next two decades, the cycle would repeat itself: State leaders would recommend major changes to address school facilities — including lowering the bond threshold to 60% — and the Legislature would push back, offering instead modest investments. At least two bills to make it easier for districts to pass bonds went nowhere.

As recently as last year, a state report estimated that school facilities’ needs now stand at more than $800 million, a figure that researchers acknowledged was likely on the low end of the actual need.

“The Legislature never did fulfill its responsibility,” said Jim Jones, a former state Supreme Court justice who concurred, in part, on its 2005 decision. “They nipped around the edges here and there. But they never set up a system whereby the state took responsibility, or the primary responsibility, for funding, construction and maintenance. And that’s where we are now.”

Republican state Rep. Jason Monks disagreed, saying the Legislature had fulfilled its constitutional obligation but was still working to improve public education. “Are we doing the minimum? Yes,” said Monks, the former assistant House majority leader. “Can we do better? Yes. And should we do better? Yes. But I think we are providing at least a minimum that we’re required to.”

This year, in a nod to the struggles of school districts, lawmakers passed a property tax bill that allocated funds for districts to pay off bonds and levies. Districts will receive $65 million this fiscal year and about $79 million in the next fiscal year, according to estimates from the governor’s office. But, critics note, the legislation also eliminated an election day in March, one of the four dates on which districts could hold bond votes — and the one where districts have historically seen the most success.

State Rep. Julie Yamamoto, a Republican and the chair of the House Education Committee, said that the bill was a start but that lawmakers needed to do more to live up to their constitutional obligation to adequately fund school facilities. “We recognize that you can’t pass a bond to build, nor can you pass one to keep your buildings up,” she said in an interview. “We need to act.”

Meanwhile, in Boundary County, after two failed bonds, teachers and administrators are forced to deal with the conditions at Valley View Elementary, worrying about whether they can keep students safe in a building they can’t afford to change.

Conditions Affect Learning Drea Leach teaches her fifth grade students about fractions at Valley View.

Every September, at the beginning of the school year, Drea Leach gets to her fifth grade Valley View classroom by 6 a.m. Hoping to beat the heat, the teacher opens the windows and lets in the outside air. But with Idaho increasingly facing record-high temperatures, it’s rarely enough to keep the room bearable for the day ahead.

By 10 a.m., the classroom can reach 85 degrees, she said. Students start to sweat, fan themselves and shut down. “To try to get kids to sit in here and learn and focus when it’s 85 degrees is almost impossible,” said Leach, who used her own money to provide a water cooler for students.

Boundary County teachers and administrators say there is little they can do with scant resources. Unlike schools in wealthier, urban communities like Boise, Valley View has no air conditioning, and bringing in AC units for the classrooms — like schools in the city of Nampa did last fall when its old units failed — isn’t an option. It would overload the electrical system, which is at capacity.

First image: Students arriving early for breakfast on a January morning keep their winter coats on even after they get inside. Second image: A third grader wears snow pants during a lesson.

Winters present similar challenges. Aging cinder block walls provide little buffer against the cold, and the heating is inefficient and expensive to run. Leach has tripped the breaker by plugging in a space heater, so students are often forced to bundle up for instruction. Indeed, on a 36-degree January day, the Statesman and ProPublica observed students wearing their jackets and snow pants during class. The classroom can get so cold, Leach said, that she simply places her lunch on the floor near the outside wall to keep it cool. “It actually refrigerates itself,” she said.

Teachers often turn to Steve Bortz, Valley View’s head of maintenance. For the past seven years, he’s spent his days fielding calls from staff members about leaking ceilings, clogged drains and cracked walls. When the area gets big snowstorms, he spends hours blowing snow off the roof to prevent collapse. On a recent tour, he removed a hallway ceiling tile to reveal how he deals with leaks: buckets attached with tape to catch water. When he sees new cracks in the walls, he fills them, hoping to block drafts. “All I’m able to do is just try to take care of the situation as best as we can,” he said in an interview. “Most of the stuff I end up doing now is cosmetic.”

Steve Bortz is in charge of maintenance at Valley View. First image: ​​A Valley View maintenance worker removes ceiling tiles to look at a crack in a support beam above a classroom. Second image: Bortz makes notes of maintenance that needs to be done in one of the school’s bathrooms, which often need work because of an outdated plumbing system.

These kinds of conditions can impact learning. In 2017, researchers from the Harvard T.H. Chan School of Public Health, after reviewing more than 200 scientific studies, reported that temperatures can affect test scores and that poor ventilation is linked to fatigue and shorter attention spans. In interviews with the news organizations, seven teachers and staff members at Valley View complained about losing teaching time each month due to the school’s age and layout.

Notably, in addition to the climate challenges, students must travel between six buildings throughout the day — an unusual design implemented decades ago to deal with overcrowding. The distance between buildings is particularly hard on kindergarten students, who cross a street at least four times a day to get to lunch, to gym class and to the library.

Kindergarteners cross the road between their classroom building and the main campus multiple times each day.

Traveling back and forth during winters when the ground is covered with snow and ice can be dangerous. Administrators say a boy who uses a walker has tripped on the broken sidewalk and was injured.

Administrators say it’s only a matter of time before the school will experience another crisis. Valley View’s plumbing system, for instance, is made up of clay and galvanized pipes, which are collapsing after more than seven decades of use. A “catastrophic failure” could render the bathrooms inoperable, Bayer said. If that happens, the main school building would have to shut down. To many teachers, the solution is clear: a new building.

“All we would have to worry about are the students. That would be our sole job,” said Teresa Smith, a second grade teacher. “We wouldn’t have to worry about the cracks or the ceilings or the bathrooms or them going in and out without supervision. We wouldn’t have to worry about any of that, just their education.”

A Call for State Intervention

On a cold night in January, Bayer faced the Boundary County school board. On the agenda was Valley View Elementary.

Bayer, second from right, told the school board that the district’s facilities committee recommended asking the state for help repairing Valley View Elementary.

The district had done what it could by pitching bonds to voters, Bayer said. But twice, too many taxpayers said no. “I don’t know what else to do to convince the public that we need a new school,” Bayer told the board.

First image: Water seeps across the floor in the boiler room. Second image: Kindergarteners use a playground next to their building, which is located across the street from the rest of the campus.

She then summarized the findings of the district’s facilities committee, which considered four potential courses of action, all of them grim: Do nothing while the conditions at Valley View deteriorate more; start making repairs, knowing they would be throwing money at a crumbling building; put another bond on the ballot; or ask voters to approve funds through a different kind of measure, known as a plant facilities levy. But even that levy would present challenges — while it could pass with less overall support than a bond, it could also result in much higher taxes for property owners right away and fewer funds for the school up front, meaning the district would need to attempt to build a new school in phases.

The group chose none of them. Instead, it recommended that the school board bring in the state.

As Bayer relayed this information to the room that night, board members shook their heads and covered their faces with their hands. Since 2006, Idaho has stepped in only twice to help school districts repair their schools. That help came at a price: a state loan, which was paid back by local residents through tax increases they didn’t agree to. Even then, in one case, the state covered only certain repairs and wouldn’t fund a new school, leaving the district with many of its problems still unresolved, The Associated Press reported.

That night, seeing no other choice, the Boundary County school board approved a plan to ask the state to intervene.

A state inspector will now determine the severity of Valley View’s issues, Teresa Rae, the board’s vice chair, told the Statesman and ProPublica. If the school is deemed unsafe, the district could ultimately apply for a state loan. Local leaders, however, are asking for more guidance from the state.

“Just tell us what to do. You created this mess,” Rae said at the board meeting. “You make it so difficult that you can’t pass a bond, yet you don’t fund facilities. … You tell us what to do.”

Had they just needed a simple majority to pass a bond, she said, “we’d already be building.”

Help Us Report on Idaho’s Deteriorating Public Schools

by Brett Murphy

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

A Washington ethics watchdog is calling for the Department of Justice to investigate Supreme Court Justice Clarence Thomas for failing to disclose luxury trips he received from a billionaire GOP megadonor.

“This high-profile ethics matter has historic implications far beyond one Supreme Court justice,” attorneys for the nonpartisan Campaign Legal Center wrote in a detailed letter on Tuesday to the Judicial Conference, the principal policymaking body for federal courts. The Judicial Conference could trigger an investigation by referring the case to the Justice Department.

The financial disclosure law that covers justices and other federal officials states that “knowingly and willfully” failing to make required disclosures can result in fines. If someone intentionally falsifies their disclosure reports, they can face criminal penalties — a warning printed below the signature line of the reports themselves. But such prosecutions are rare.

ProPublica’s investigation last week revealed that Thomas has taken international cruises on conservative donor Harlan Crow’s superyacht, flown on Crow’s private jet and regularly vacationed at Crow’s private resort in the Adirondacks.

If the Judicial Conference were to refer the case to the Justice Department, it could lead to a remarkable historical moment. One of the few instances of a federal investigation into a sitting Supreme Court justice occurred in 1969, when Justice Department officials signaled an inquiry into outside payments that Justice Abe Fortas had been accepting. Fortas eventually resigned.

Lawyers for the Campaign Legal Center, which was founded by a former Republican chairman of the Federal Election Commission and pushes for tighter ethics enforcement in Washington, wrote that there’s ample “reasonable cause to believe that” Thomas knew the trips had to be disclosed.

“If the Judicial Conference fails to publicly address the substantial evidence of blatant violations of a disclosure law that other federal judges understand and regularly follow,” the attorneys wrote, “it creates an exception for Justice Thomas that swallows the rule.”

The Judicial Conference and Thomas did not immediately respond to requests for comment. The Justice Department declined to comment.

The letter is the latest in what have been days of mounting pressure to address the revelations. Last week, Democratic lawmakers called on Chief Justice John Roberts to investigate. This Monday, Democrats on the Senate Judiciary Committee announced plans to hold a hearing “regarding the need to restore confidence in the Supreme Court’s ethical standards.” They also announced an effort to reform ethics rules for federal judges.

In response to our story last week, Thomas issued a statement acknowledging the “family trips,” which he said he was told that he didn’t need to report.

“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas wrote. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”

Seven experts consulted by ProPublica, including former ethics lawyers for Congress and the White House, said the law clearly requires the disclosure of gifts of transportation, such as private jet flights. If Thomas is arguing otherwise, the experts said, he is incorrect. Among the experts was a top official at the Campaign Legal Center.

Crow acknowledged that he’d extended “hospitality” to the Thomases “over the years.” He said that Thomas never asked for any of it and it was “no different from the hospitality we have extended to our many other dear friends.”

Attorneys with the center said that the federal Ethics in Government Act and judiciary regulations have always required the disclosure of free travel — even before the regulations were updated last month. They argued that Thomas himself implicitly acknowledged as much when he disclosed similar flights in the late 1990s, including one on Crow’s jet.

The attorneys pushed for the Judicial Conference to make good on its recent promises to “ensure timely action is taken on credible allegations of misconduct” and refer Thomas’ case to the Justice Department before the next judicial ethics disclosure deadline in May.

Do you have any tips on the courts? Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240. Brett Murphy can be reached by email at brett.murphy@propublica.org or by Signal or WhatsApp at 508-523-5195.

Alex Mierjeski, Joshua Kaplan and Justin Elliott contributed reporting.

by Richard A. Webster, Verite, and David Hammer, WWL-TV

This article was produced in partnership with Verite and WWL-TV along with The Times-Picayune | The Advocate, which was part of ProPublica’s Local Reporting Network in 2022. Sign up for Dispatches to get stories like this one as soon as they are published.

Lisa Ruiz was at her home in Eden Isle, Louisiana, a community of about 8,000 nestled on the eastern shore of Lake Pontchartrain, when her mother called.

“You need to turn on the news!” her mother said that afternoon in early February. “The governor just announced the state is forgiving all the Road Home lawsuits.”

Ruiz’s heart skipped. Maybe she would get her money back.

Three years earlier, the state had sued Ruiz, saying she had misused a $30,000 grant meant to elevate her home to protect it from future flooding after Hurricane Katrina. The grant came as part of Road Home, the largest disaster recovery program in the country’s history. Like others, Ruiz said she had been told by Road Home representatives that she could use the money for repairs, and she did.

When the state came after her, Ruiz was afraid she could lose her house, so she withdrew $31,000 from her retirement account and sent it as repayment.

It wasn’t an easy decision, she said. That money was supposed to go toward the care of her severely autistic son after she dies. But rather than hiring an attorney to fight the suit or ignoring the demand and facing the possibility of a lien being placed on her home, she decided paying back the grant was the right thing to do.

“Everything I do, working 12-hour shifts for the past 15 years, is to put money into that account for my son because he’s going to require 24-hour care after I’m gone,” said Ruiz, a nurse for three decades, as tears streamed down her face. But, she added, “I’m an honest person. If it’s a debt I owe, I’m going to pay it.”

Then, in February, she got the call from her mother and thought for a moment that the state would fully reimburse her.

That hope was quickly dashed. Under threat of being sued, 425 people had made partial or full payments — totaling $6.8 million — to the state. But while thousands more would now be freed from legal peril, no longer required to pay what the state said they owed, officials said those hundreds who had already paid would not get refunds.

Ruiz was outraged.

“It’s not fair for people who were trying to do the right thing when there was no benefit for doing the right thing,” she said.

Years of Mismanagement

Louisiana Gov. John Bel Edwards’ Feb. 16 announcement that the state was no longer pursuing about 5,000 lawsuits against homeowners who allegedly misused recovery grants after hurricanes Katrina and Rita officially ended the 17-year odyssey of Road Home.

Of those lawsuits, about 3,500 specifically targeted families who received grants to elevate their homes to safe levels but failed to do so.

The program had been beset with problems from the start. An investigation by The Times-Picayune | The Advocate, WWL-TV and ProPublica last year found that the $30,000 grants provided to homeowners like Ruiz were not enough to elevate a house, which was a requirement of the grant. At the time, it cost at least three times that amount to put a home onto raised footings, something the state acknowledged later.

The state also failed to double-check whether people were eligible to receive the grants, or that their homes needed to be elevated, before sending out the money. When some of those homeowners contacted the state to say they didn’t need or want to elevate their homes, they were told by Road Home representatives they could use the funds for repairs, so that’s what they did, according to court records and the news outlets’ investigation.

Ruiz said she was quoted as much as $160,000 to elevate her home, which was more than she could afford. But Road Home representatives, she said, told her she could instead use the elevation grant to finish rebuilding.

“We were in a heck of a shape. So it was very easy to take those words and say, ‘OK, wonderful. This is a blessing.’ So that’s what we did,” she said.

At least five appeals court rulings support homeowners’ contention that they were told they could use the grants for repairs. But state officials said homeowners have been unable to identify who told them they could use the money for repairs.

Years of mismanagement of the recovery program left Louisiana on the hook to the U.S. Department of Housing and Urban Development, which funded Road Home, for nearly $300 million in misspent grants, about $103 million of that for the elevation grants alone. Under pressure from the federal government to recoup that money, the state sued thousands of storm victims.

The suits drew criticism from residents, housing advocates and elected officials, and the state and HUD spent years trying to negotiate a way out of them. The biggest question was how much the state would have to repay to satisfy its debt to the federal government. Only then could it close out the Road Home program and drop the lawsuits.

“It’s been a miserable thing for the state of Louisiana to pursue these individuals, because we knew the vast majority of them were never going to pay,” Edwards said in February.

The deal that the state and HUD eventually brokered allowed the state to repay just $32.5 million in misused funds and release homeowners from “unpaid judgments and payment plans,” according to a HUD spokesperson.

To pay off the $32.5 million, Louisiana is using two separate pots of money: $12 million from a settlement with ICF Emergency Management Services, the third-party contractor the state sued for mismanaging the recovery program; and an anticipated $20.5 million appropriation by the state legislature in the current session.

Ruiz questioned why the state can’t appropriate additional funds to reimburse her and others, but state Commissioner of Administration Jay Dardenne said doing so would likely run afoul of the state constitution, which explicitly prohibits public money being “loaned, pledged or donated to or for any person.”

State Rep. Jerome Zeringue, R-Houma, chairman of the House Committee on Appropriations, echoed Dardenne’s sentiments. The legislature could seek an opinion from the attorney general approving the appropriation of additional money, but there is a good chance such an opinion would be challenged and overturned by the courts, he said.

Asked whether the legislature is even considering such a move, Zeringue said, “It hasn’t been brought up until you asked about it.”

As part of the deal reached with the federal government, the state will also forgo receiving $37 million in unused Road Home funds from HUD. That money, however, can’t be used to reimburse those who already paid back their grants, a HUD spokesperson told the news organizations.

John Lovett, a professor at the Loyola University New Orleans College of Law, called the state’s argument “weak” and a “perversion” of the state constitutional clause’s true intent, which is to prevent the use of public funds for influence peddling and cronyism: “The state collected this money it really shouldn’t have collected in the first place.”

He said restoring funds to the 425 residents who paid back money under threat of being sued is “a kind of reparation that seems appropriate to me.” If the legislature were to authorize compensation, “that would be a perfectly legitimate use of state funds,” Lovett said.

Watch WWL-TV’s Report

Dardenne said that by dropping the lawsuits, the state was not admitting they were illegitimate or that the money was wrongfully collected. He pointed to numerous cases in which the courts ruled in the state’s favor and against homeowners as proof the suits were on solid legal ground. “If the premise had been faulty, then all the lawsuits would have been thrown out,” he said.

Nonetheless, Louisiana is certainly not short on money, entering the legislative session with a $1.5 billion surplus, Lovett said. At his February press conference about the suits, Edwards acknowledged this. "Thank goodness we have excess money in the state of Louisiana today, which we didn’t have when I became governor," he said.

New Orleans attorney Chris Szeto, who represented more than 300 families sued over their Road Home grants, said reimbursing homeowners who already repaid grants is exactly what the state should do.

“You can’t say to one group of people, ‘We don’t think you should have to pay this money back anymore.’ And to this other group, ‘All that money you paid? That’s too bad. We’re not giving it back,’” Szeto said. “It’s disgraceful. It’s morally wrong. And it shows a lack of concern for the average citizen.”

Szeto has not ruled out filing legal challenges on behalf of his clients the state refuses to reimburse. “We’re looking at all possible solutions,” he said.

Last May, just weeks after the news outlets reported on the lawsuits, the state announced that it was pausing collections. By that point it had received about $5 million. But it failed to notify homeowners who had ongoing monthly payment plans. So the checks continued to pour in, and Shows, Cali & Walsh — a law firm representing the state — continued to cash them, generating an additional $1.8 million, about a quarter of the total repaid by residents under threat of suit by the state.

The state has paid Shows, Cali & Walsh $11.1 million since 2009 to litigate claims of fraud and waste for all Road Home programs, including the elevation lawsuits.

“I Followed the Rules”

Judy Baptiste at her home in New Orleans (Photo by Sophia Germer, The Times-Picayune and The New Orleans Advocate)

Judy Baptiste started sending the state $400 a month in March 2018to pay down about $23,000 the state claimed she owed for misspending her elevation grant. It wasn’t easy, she said. Her sole source of income — Social Security payments — was less than $1,100 a month. After paying the state, she said, she rarely had enough left over for food or utilities and had to rely on friends and family to help her financially.

Still, she didn’t feel as if she had a choice.

“They just kept sending me letters in the mail, telling me that if I didn’t pay them that they would put a lien on my house,” she said of Shows, Cali & Walsh, which did not respond to a request for comment.

Even after the state paused its collection, Baptiste, who lives in Seabrook, a lakefront subdivision of New Orleans East, continued to make her regular payments, ultimately sending the state $3,083.38 after the announcement was made.

“I followed the rules. I was never late paying them on time, every month,” Baptiste said. “They never called and told me, ‘Ms. Baptiste, you have to stop paying.’ They just were taking the money.”

Angie and Kevin Tillman, who live in the Gentilly neighborhood in New Orleans, agreed to a plan that required them to make monthly payments of $250 for five years plus a balloon payment of about $15,000 at the end. She later learned the state had paused its collection efforts back in May, but afterwards still cashed four of their checks, totaling $1,000.

Her husband called the state’s actions “reprehensible.”

“The state held us hostage financially, and they would have continued to take our money and not said a mumbling word,” he said.

When asked why the state continued to accept monthly payments from homeowners after the state paused its collection efforts, Dardenne said those payment plans were court-ordered, so the state had no choice. “Those were legal judgments that had been rendered,” he said. “And so, we determined that we couldn’t stop what was in place. But we stopped everything going forward.”

But that wasn’t the case with either the Tillmans or Baptiste. The state never filed suit against them. Their payment plans were out-of-court agreements signed by notaries that said nothing about the state being required to accept the payments.

Lovett, the law professor, called the state’s argument that it couldn’t stop collecting monthly payments “very strange.” Any debt collector can choose to forgive a debt, he said.

“I think the argument about their inability to stop collecting, even on a court judgment, is just a technicality, is putting form over substance,” Lovett said. “There was no reason they should have continued to collect once they knew it was wrong because they stopped trying to pursue other people.”

Sitting in her one-story ranch-style home that was left submerged in 3 feet of water by Katrina, Angie Tillman questioned whether she and her husband made the right choice to stay in New Orleans after the storm.

“New Orleans is our home. We returned with a commitment to rebuild. We invested in our community. And then you come back and nickel-and-dime us?” Angie said. “It’s disheartening.”

by Sharon Lerner

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

The Environmental Protection Agency is facing a lawsuit filed by a community group and questions from a U.S. senator over the agency’s approval of fuels made from discarded plastic under a program it touted as “climate-friendly.”

The new scrutiny is in response to an earlier investigation by ProPublica and the Guardian that revealed the EPA approved the new chemicals even though its own scientists calculated that pollution from production of one of the plastic-based fuels was so toxic that 1 in 4 people exposed to it over their lifetime would be expected to develop cancer. That risk is 250,000 times greater than the level usually considered acceptable by the EPA division that approves new chemicals, and it’s higher than the lifetime risk of cancer for current smokers.

On Friday, a community organization sued the EPA in the U.S. Court of Appeals in Washington, D.C., over the agency’s decision to allow a Chevron refinery in Pascagoula, Mississippi, to produce the fuels derived from plastic waste, including the one that could subject people nearby to a 1-in-4 lifetime cancer risk. Cherokee Concerned Citizens, which represents residents in a housing subdivision close to that refinery, is asking the court to invalidate the EPA’s approval of the new chemicals.

Earlier in the week, the chair of the U.S. Senate subcommittee that oversees chemical safety questioned the head of the EPA over the agency’s approval of those fuels. Sen. Jeff Merkley, a Democrat from Oregon, told EPA Administrator Michael Regan in a letter sent on Wednesday that he found what ProPublica and the Guardian discovered “especially troubling.”

“While it is urgent that our country takes actions to address climate chaos we need to ensure that the steps we take actually reduce greenhouse gas emissions and do not do so by sacrificing historically marginalized communities and those who are already overburdened by toxic pollution,” Merkley wrote.

The plastic-based fuels were given a green light under an EPA program designed to make it easier to create alternatives to fossil fuels. As ProPublica and the Guardian noted in the February story, making fuel from plastic is in some ways worse for the climate than simply creating it directly from coal, oil or gas. That’s because nearly all plastic is derived from fossil fuels, and additional fossil fuels are used to generate the heat that turns discarded plastic into fuels.

U.S. Sen. Jeff Merkley, D-Ore., holds a plastic bottle as he talks about recycling during a hearing by a subcommittee of the Senate Appropriations Committee in 2021. (Kevin Dietsch/Getty Images)

Federal law does not allow the EPA to approve new chemicals that have serious health or environmental risks unless the agency finds ways to minimize them. Yet, the agency approved the new plastic-based fuels without requiring lab tests, air monitoring or controls that would reduce the release of cancer-causing pollutants or nearby residents’ exposure to them, ProPublica and the Guardian found.

The sky-high risks and lack of safeguards for the people who would breathe pollution from the refinery’s smokestack are at the center of a lawsuit brought by residents of Pascagoula’s Cherokee Forest subdivision. The subdivision, which is near a number of industrial facilities, was inundated with cancer-causing pollution well before the new fuels were approved, as ProPublica reported in 2021, and the residents have been working for years to curb local emissions.

Barbara Weckesser, a resident who co-founded the group that’s suing the EPA, said she was surveying her neighbors about illnesses she fears are related to pollution just before she read about the approval of the plastic-based fuels on ProPublica’s website. “I was sitting down in my chair and I said holy — I won’t say the rest of it,’” said Weckesser. “Here we go again.” She noted that five of her neighbors are currently undergoing chemotherapy.

Barbara Weckesser outside of her home in Pascagoula (Kathleen Flynn, special to ProPublica)

Katherine O’Brien, an Earthjustice senior attorney who represents the community group, said the law requires the EPA to address “unreasonable risks” presented by chemicals. The agency can impose specific limits or requirements that companies must follow and, when necessary, prevent them from making or using a chemical. “The community should not be subjected to additional emissions of novel toxic chemicals, particularly where EPA found that the chemicals will pose jaw-dropping risks to human health,” O’Brien said.

An EPA spokesperson on Friday declined to comment about the lawsuit. When asked about the fuels in February, a spokesperson for the agency said that the 1-in-4 cancer risk calculation was “a very conservative estimate with ‘high uncertainty,’” meaning that it erred on the side of caution in calculating such a high risk.

The spokesperson at that time explained that the EPA included plastic-based fuels in a program focused on biofuels because the initiative also covers fuels made from waste. As of February, the program had approved 34 fuels; 16 of them were made from waste. All 16 of the waste-based fuels were subject to consent orders, documents that the EPA issues when it finds that new chemicals or mixtures may pose an “unreasonable risk” to the environment or human health. Consent orders spell out the risks and specify the agency’s plans for mitigating them.

Asked about Sen. Merkley’s letter, the EPA said in a written statement that it “looks forward to the opportunity to clarify the record as well as its approach to reviewing” these new chemicals, “communicate more clearly about the risks associated with the submissions the agency has already reviewed, and discuss ways EPA plans to improve this approach in the future.”

In a written statement, Chevron told ProPublica and The Guardian in February that the company had followed the EPA’s process under the Toxic Substances Control Act, which regulates chemicals. The statement said, “We are taking steps to address plastic waste and support a circular economy in which post-use plastic is recycled, reused or repurposed.”

Chevron also recently created a webpage that it says answers questions raised by the community about the February article. On it, the company describes its new fuels as “part of an advanced sustainable recycling program” and notes that it has not begun to produce them. The website also describes the 1-in-4 cancer risk as “based on EPA’s initial risk screening.”

In fact, that high lifetime cancer risk was the EPA’s own calculation and was detailed in a final consent order that was signed by a manager at Chevron’s Pascagoula refinery and the director of EPA’s new chemicals division.

The Chevron website also says that the cancer risk “was taken out of context and doesn’t reflect how it would actually be done given the processes and safeguards we use every day at the refinery to ensure we do everything safely or not at all.” The company website says Chevron did a trial of the process about a year ago and found that “the refinery functioned normally” and emission levels “remained normal.”

The website says that the company “will not do anything that is unsafe for our workers or our neighboring communities. We will ensure it can be done safely or not at all.”

A Chevron spokesperson declined to comment about the lawsuit. Asked about Sen. Merkley’s letter, the company in a new written statement said it stood by its earlier comments and noted that the EPA review under the Toxic Substances Control Act “begins with an initial screening analysis to identify preliminary chemical risks. The next steps include adding workplace safety and environmental protections, which are also in that consent order.”

Chevron also wrote, “A variety of environmental regulations and permitting processes govern air, water and handling hazardous materials,” including the Clean Water Act, Clean Air Act and Resource Conservation and Recovery Act. “Any responsible reading of chemical risks will be informed by these requirements.”

As ProPublica and the Guardian noted in February, the Clean Water Act does not address air pollution, and the new fuels are not regulated under the Clean Air Act, which applies to a specific list of pollutants. The Resource Conservation and Recovery Act governs the management of waste.

While state regulators can add specific pollutants to permits that regulate air emissions, it would be difficult in this case, because critical details about the fuels were hidden by the EPA. The consent order even blacked out the names of the chemicals. The agency said that these basic facts were considered confidential business information.

The Environmental Protection Agency blacked out key information in this section of a consent order, which covers new Chevron fuels derived from plastic waste. (EPA document obtained by ProPublica and the Guardian)

In his letter, Merkley asked EPA Administrator Regan which federal rules and regulations apply to the air pollution emitted during the production of the plastic-based fuels. Merkley had other pointed questions for the agency, including why it approved the new chemicals without a more thorough understanding of their risks and how it plans to monitor their production to ensure environmental safety and public health.

Merkley — chair of the U.S. Senate Committee on Environment and Public Works Subcommittee on Chemical Safety, Waste Management, Environmental Justice, and Regulatory Oversight — reminded Regan that the EPA told the public the new fuels program supported a federal climate change plan that lists promoting environmental justice as a key goal. “How does the EPA balance or reconcile that goal with the increased environmental and public health hazards imposed by these new chemicals?” he asked.

Merkley also wrote, “So-called ‘chemical recycling’ has been touted by companies like Chevron as a way to reduce plastic waste through repurposing it but turning plastic waste into fuel increases greenhouse gas emissions, subsidizes the petrochemical industry, and harms frontline communities located near these facilities.”

The senator also asked for a list of all the new waste-based fuels approved and all consent orders issued under this program. ProPublica and the Guardian requested this same information earlier this year, but the agency wouldn’t provide it. Merkley gave Regan an April 30 deadline.

by Alex Mierjeski, Joshua Kaplan and Justin Elliott

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

Democrats on the Senate Judiciary Committee on Monday announced plans to hold a hearing in the coming days “regarding the need to restore confidence in the Supreme Court’s ethical standards,” citing ProPublica’s reporting on over 20 years’ worth of luxury travel accepted by Supreme Court Justice Clarence Thomas from a billionaire Republican megadonor.

The planned hearing is detailed in a letter to Chief Justice John Roberts and follows comments made by the committee chair, Illinois Sen. Dick Durbin, last week in which he called for an “enforceable code of conduct” for the justices.

If “the Court does not resolve this issue on its own, the Committee will consider legislation to resolve it,” the letter said.

Monday’s letter echoed a call from 22 Democratic lawmakers last week for Roberts to launch an investigation into Thomas’ trips and his failure to report them. That group included members of both the House and Senate judiciary committees.

In their separate letter to Roberts, those lawmakers — including Rhode Island Sen. Sheldon Whitehouse and Georgia Rep. Hank Johnson — wrote that as chief justice, Roberts is duty-bound to conduct a “swift, thorough, independent and transparent investigation” in order to “safeguard public faith in the judiciary.”

Both letters hinted at congressional action to strengthen the court’s rules around ethics and disclosure. The court “has barely acknowledged, much less investigated” the details reported by ProPublica, the lawmakers wrote Friday, citing their alarm over “allegations of unethical, and potentially unlawful, conduct at the Supreme Court.”

“Should the Supreme Court continue to refuse to act swiftly on these matters,” the letter added, “we will continue to press Congress to act to restore accountability and ethics at the highest Court in the land.”

The flurry of activity by the lawmakers comes in response to ProPublica’s report revealing that for years, Thomas had accepted luxury trips from Dallas billionaire Harlan Crow without disclosing them. The trips included international cruises on Crow’s superyacht, flights on Crow’s private jet and regular summer getaways at Crow’s private lakeside resort in the Adirondacks.

A Supreme Court spokesperson didn’t immediately respond to a request for comment on the letters.

In a brief statement on Friday, Thomas cited “guidance from my colleagues and others in the judiciary” that “this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”

Crow previously told ProPublica that he and his wife never discussed a pending case with Thomas and had “never sought to influence Justice Thomas on any legal or political issue.” He also said that he is “unaware of any of our friends ever lobbying or seeking to influence Justice Thomas on any case, and I would never invite anyone who I believe had any intention of doing that.”

An ethics law passed after the Watergate scandal requires justices and other federal officials to disclose most gifts to the public. That law, legal ethics experts told ProPublica, clearly mandates that gifts of transportation, including private jet flights, be reported.

Urging the court to adopt stricter rules on Monday, Senate Judiciary Committee members noted that justices’ “ethical standards” have raised concerns before. They pointed to a series of articles in 2011 that revealed some of the close ties between Thomas and Crow.

“This problem could have been resolved then. Instead, according to ProPublica’s reporting, Mr. Crow’s dispensation of favors escalated in secret during the years that followed. Now the Court faces a crisis of public confidence in its ethical standards that must be addressed,” they wrote.

In the letter sent last week, the Democrats — whose ranks include Sen. Richard Blumenthal of Connecticut, Sen. Elizabeth Warren of Massachusetts, Rep. Jerry Nadler of New York and Rep. Adam Schiff of California — cited a pressing need for updated rules for the court. “It is well past time for the Supreme Court to align with the rest of government in a proper code of ethics enforced by independent investigation and reporting,” they wrote.

The lawmakers also questioned Thomas’ defense, noting that the so-called personal hospitality exemption to the law is “not meant to allow government officials to hide from the public extravagant gifts by wealthy political interests.”

And they raised concerns around the broader ethical implications of a Supreme Court justice taking undisclosed trips with other guests, calling for more robust disclosure and ethics rules for the court. In one instance detailed in ProPublica’s report, Thomas was joined at Crow’s Adirondacks resort by corporate executives, major Republican donors and one of the leaders of the American Enterprise Institute, a conservative think tank.

Whitehouse and others have already introduced a bill this year aimed at tightening the court’s rules, among other reforms.

Spokespeople for Ohio Rep. Jim Jordan, the Republican chairman of the House Judiciary Committee, and South Carolina Sen. Lindsey Graham, the ranking Republican on the Senate Judiciary Committee, did not immediately respond to requests for comment.

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

by Jessica Miller, The Salt Lake Tribune

This story discusses sexual assault.

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

Jessica Lancaster didn’t want to tell the panel of three strangers in front of her about the moment her chiropractor insisted she lift up her shirt.

How Kelby Martin’s breathing became heavier as he groped her breasts, which had been healing from surgery; how after he touched her chest, he didn’t follow through with any type of chiropractic treatment; how she left his office in August 2021 in a haze.

But Lancaster wanted to sue Martin to hold him accountable, and before she could do that, Utah law required her to make her case to the panel.

The panel concluded last August that Martin had departed from the normal standard of care, Lancaster’s lawyers later disclosed in a court filing. In response to a request for comment, Martin’s lawyer pointed to court papers in which the chiropractor denied Lancaster’s allegations against him. The case is pending; his license remains in good standing with the state.

There was a time when a majority of states had adopted malpractice screening panels in some form. A 1984 analysis by the American Medical Association found 30 states had implemented panels at some point. The goal was to cut down on frivolous lawsuits and encourage settlements of legitimate claims.

Over the years, many of those states found these panels ineffective or in violation of their constitutions, and some did away with them entirely. But Utah remains one of 16 states where patients still must spend time, money for legal services and emotional energy recounting to a panel how a medical professional they trusted hurt them, according to a tally from the National Conference of State Legislatures. The Utah system has processed, on average, about 300 cases per year for much of the last decade, according to state data.

“It’s just one more time we have to tell our story,” Lancaster said. “We relive it. I think it’s so unnecessary.”

That extra step is mandated but can feel pointless to plaintiffs. Even if the Utah panel says a claim is meritless, they remain free to sue, and several attorneys told The Salt Lake Tribune and ProPublica they routinely go on to win jury verdicts or settlements in such cases.

Medical providers contend the process has a purpose. Michelle McOmber, CEO of the Utah Medical Association, said it’s common for potential plaintiffs to accuse a broad range of providers. The information sharing that happens during a panel hearing, she said, can help both sides focus on those who may have harmed the patient.

The state agency that administers the panels also asserts that they are “highly effective in ferreting out frivolous claims, as it is rare for a case deemed without merit to move forward,” said Melanie Hall, spokesperson for the Utah Department of Commerce’s Division of Occupational Licensing. The division’s data shows that over the last decade, only 4% of the cases considered by the panels were considered meritorious.

But there is no way to independently assess DOPL’s claim that nonmeritorious claims rarely move forward — because Utah is one of six states where panel rulings are kept secret from the public. And state lawmakers have not asked the division to track how cases are resolved after a panel’s judgment.

Utah law does require DOPL to compile whether claims heard by the panels are later filed as lawsuits. But it is not compiling this data, division director Mark Steinegal said in an email responding to The Tribune’s request for that data.

No one in Utah — including legislative auditors — has been able to prove that the prelitigation panels are effective at reducing litigation.

Prelitigation panel hearings are held in a conference room at the Heber Wells Building in Salt Lake City. (Trent Nelson/The Salt Lake Tribune)

Soon, sexual assault victims who say they have been harmed by medical workers will become exempt from this process. Last month, the Utah Legislature passed and Gov. Spencer Cox signed a bill clarifying that sexual assault is not considered health care, and such claims are not governed by the state’s medical malpractice act. So those who say they have been harmed after the law goes into effect — May 3 — will be able to file civil lawsuits against alleged abusers without appearing before a panel.

The new law followed a recent investigation by The Tribune and ProPublica that detailed how patients who say they were sexually assaulted by providers faced more hurdles and were treated more harshly in Utah’s civil courts than those abused in other settings.

Now some are calling for the state to abandon the panels altogether. Those critics, mostly personal injury lawyers, say it’s time for Utah to overhaul its system.

“It’s often being used as a tool to make access to justice for individuals harder, more expensive and more time-consuming,” said Jeff Gooch, a Utah personal injury attorney who has also worked as the chair of a prelitigation panel.

An “Arbitrary Delay” or Helpful Process?

Beginning in the 1970s, most states adopted some type of screening step for those who want to sue a health care provider — one of several reforms made in response to fears that the cost of health care was rising because of an increase in civil lawsuits and “runaway juries” doling out multimillion-dollar payouts.

But it became clear the system wasn’t always working the way it was intended. In 1979, Missouri’s Supreme Court ended its panel process after finding it caused a “useless and arbitrary delay.” And in 2019, Kentucky’s high court struck down its law after it had been in effect for just a year, finding it caused an unconstitutional delay in people’s ability to access the courts.

Since the panels were added to Utah’s medical malpractice law in 1985, no one, including state auditors, has been able to show whether they have had a meaningful impact on weeding out frivolous cases or reducing the number of medical malpractice cases filed.

Prelitigation panel hearings are held in this Utah Department of Commerce conference room in the Heber Wells Building. (Trent Nelson/The Salt Lake Tribune)

One Brigham Young University law school study from 1989 surveyed Utah attorneys who had participated in panels in their first two years of existence. The researchers concluded that the program was ineffective: They found that an overwhelming majority of the attorneys surveyed “stated that their opinion of the case did not change as a result of the hearing.”

“The procedure does not foster settlement,” one attorney wrote in a survey response. “It only gives the medical provider more protection by the mandated steps required before litigation can be pursued. It is another way for medical providers to avoid liability. I believe it should be done away with.”

Five years after that study was published, Utah legislative auditors took a look at the panel process. Their 1994 audit found that only 8% of the cases that were reviewed by Utah’s panel during a five-year period beginning in 1985 were settled before a lawsuit was filed. Some 60% went to court. The remaining cases were dropped without being filed in court.

“We could not find an objective way to determine whether the prelitigation process has been a success,” the auditors concluded.

Utah legislators in 2010 put an extra hurdle into the prelitigation panel process: Patients who wanted to file a lawsuit after receiving a “nonmeritorious” opinion had to find an expert who would disagree with the panel and explain why their case had merit — a process that could cost thousands of dollars. That added obstacle remained in place for nearly a decade until the Utah Supreme Court in 2019 found it unconstitutionally blocked access to the courts.

Despite no concrete evidence of the panels’ effectiveness, Steinegal said the feedback he has gotten from attorneys suggests that the prelitigation process is valuable.

“I have heard from both plaintiffs and counsel for defendants that the process is effective in achieving early discovery of the issues, long before the formal procedures that take place in court,” he said. He added that the process is worthwhile “if for no other reason than it accelerates information-sharing.”

Brian Craig, the current prelitigation panel chair, echoed Steinegal’s assertion that the panels ferret out frivolous cases. In a recent Utah Bar Journal article he authored, Craig gave the example of a woman who claimed that the physician who removed her appendix also removed one of her ovaries. A later ultrasound, he said, showed that she still had two ovaries.

“The Cards Are Stacked Against You”

Several attorneys who spoke to The Tribune and ProPublica said the extra cost and delay caused by the panels provides little benefit.

Gooch thinks the bigger problem is the long wait before a suit can be filed: “Memories fade. Excitement fades. Often people’s lives fade — especially if they’re ill.”

Ed Havas, a personal injury attorney who has practiced in Utah for more than 40 years, said it's common for attorneys to get a nonmeritorious finding from the prelitigation panel and to go on to win that case, either in a settlement or a jury verdict.

He said attorneys typically move forward because they have reviewed medical records and consulted an expert — and believe they can win. He also pointed out that panel members weigh in before plaintiff attorneys have all the evidence they will seek to support their case, since the disclosure of documents happens after a case gets into court.

The panel is less formal than a court hearing, and potential plaintiffs are not required to join their attorneys in meeting with the panel, like Lancaster did. Still, Craig wrote in his Bar Journal article, “attendance by parties” is viewed favorably by the panel and signals that both sides are taking the process seriously.

Critics also include a state legislator who works as a personal injury attorney and has been a panel member. Utah State Sen. Mike McKell — who introduced the recent law exempting sexual assault in medical settings from malpractice requirements — said there is some benefit for the person suing to get to see how a doctor plans to defend him or herself. But overall, the Republican lawmaker said, “it’s nothing more than an obstruction to a victim who has been hurt due to no fault of their own.”

Utah state Sen. Mike McKell, R-Spanish Fork, during a session of the Utah Senate on Feb. 24. McKell introduced legislation that will change state law to ensure that sexual assault lawsuits do not fall under the state’s Health Care Malpractice Act. (Leah Hogsten/The Salt Lake Tribune)

“It’s an impediment put into place to create one more barrier for that access to the court,” he added.

McKell said he tries to help his clients understand that while panelists will likely find their claims don’t have merit, that doesn’t mean they have lost their case.

“This is not a fair hearing,” he said he tells his clients. “The cards are stacked against you. You will likely lose your case with the prelitigation panel. That doesn’t mean we don’t believe in your case.”

All panels include an attorney with no connection to the case, a member of the public who has applied to serve and a health care worker in the same specialty as the accused provider. But several attorneys said its members often defer to the opinion of the health care worker in the group who works in the same field as the accused.

In Utah’s small medical community, it’s likely that these people know each other or went to school together.

“You’re asking the profession to judge themselves,” said Ashton Hyde, the legislative chair of a lobbying organization for Utah trial lawyers. “I think the panel itself is a waste.”

Hall, the DOPL spokesperson, pushed back on concerns that the panels could be biased. She said that DOPL has observed that the medical professional on the panel generally holds the accused to a higher level of scrutiny than the other panelists.

“We believe this may reduce bias from the panel members,” she said.

Hyde said he fears if his organization pushes to get rid of the panels, there will be backlash from doctors and hospitals, who could counter by seeking legislative measures that would make the prelitigation process more difficult.

McKell said he contemplated introducing a bill to get rid of the prelitigation panels three years ago, after the Utah Supreme Court ruling limited their use. But he said he opted not to do so after receiving feedback from lawyers who thought the process still had value.

He has no plans to bring future legislation to eliminate the prelitigation panels, he said in a recent interview.

“This Is on My Soul”

Lancaster said she left her prelitigation panel meeting hurt after one member asked her questions that she perceived as blaming her for being assaulted. She had trusted Martin for care for more than three years, she said, and when he allegedly assaulted her, it caused “a wound I can’t even explain.” (The finding from Lancaster’s panel hearing only became public because it was disclosed in a court filing that was later amended to remove it.)

Lancaster said she believes the panel should receive additional training to be more sensitive toward those who say they have been hurt.

“It was just a lack of education,” she said. “You don’t blame the victim for someone assaulting” them.

Hall, the spokesperson for DOPL, said that panel members do not currently receive sensitivity training, emphasizing that the division’s role in administering the panels is “clerical.” She said officials expect panel members to be professional and sensitive in their questioning, but said they also need a thorough understanding of the case.

“This may require very direct questions that seem insensitive,” she said.

Because McKell’s new reform exempting sexual assault survivors from medical malpractice requirements is not retroactive, alleged victims like Lancaster will continue to go before prelitigation panels for at least two more years — based on the filing deadlines for medical malpractice cases.

To Lancaster, sharing her story with the panel brought back the trauma she had experienced after the alleged assault.

“This is on my soul,” she said. “It’s on the depths of me that I will spend forever healing and trying to fathom why someone would do this to someone.”

If you need to report or discuss a sexual assault in Utah, you can call the Rape and Sexual Assault Crisis Line at 801-736-4356. Those who live outside of Utah can reach the National Sexual Assault Hotline at 800-656-4673.

Help ProPublica and The Salt Lake Tribune Investigate Sexual Assault in Utah

Mollie Simon contributed research.

by Vianna Davila, Lexi Churchill and Ren Larson, ProPublica and The Texas Tribune, and Davis Winkie, Military Times

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

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans, and with Military Times, an independent news organization reporting on issues important to the U.S. military. Sign up for newsletters from The Texas Tribune and Military Times.

Stationed at Army posts thousands of miles apart, two soldiers faced a flurry of criminal charges after they allegedly assaulted women within days of each other in early 2017.

One soldier was accused of physically assaulting his wife and firing a gun as she tried to flee their home near Fort Hood in Texas. Police later found a bullet hole in a window screen.

The other told investigators in Alaska that he’d had sex with a fellow soldier who he knew was drunk and incapable of providing consent. They later found DNA evidence of his semen on her shorts.

Military prosecutors deemed the cases strong enough to pursue them in court. But the Army instead kicked the soldiers out, allowing them to return to civilian life with scant public record of the accusations against them.

The two cases are among hundreds that lay bare a long-standing but little-known practice that permits service members facing criminal charges to circumvent trial by being discharged from the military. The service members often receive negative marks on their personnel records but avoid the possibility of a federal conviction.

A federal watchdog agency in 1978 called for abolishing the practice, known as administrative separations in lieu of court-martial, arguing that it should be used only to remove service members who were unfit for the military, not to dispose of cases involving alleged criminal offenses.

A 1978 report to Congress called for the elimination of administrative discharges in lieu of court-martial. (Highlighted by ProPublica and The Texas Tribune)

Nearly 50 years later, however, the practice remains. And, in the Army, it is increasingly being used for cases in which soldiers are charged with serious crimes such as sexual assault, domestic violence or child abuse, an investigation by ProPublica, The Texas Tribune and Military Times found.

More than half of the 900 soldiers who were allowed to leave the country’s largest military branch in the past decade rather than go to trial were accused of violent crimes, according to an analysis of roughly 8,000 Army courts-martial cases that reached arraignment. The figure is a significant increase from about 30% in the previous decade.

Choosing to handle such cases administratively instead of through the courts can have serious ramifications, experts told the news organizations.

Some soldiers escape potential legal consequences: Those who may have been convicted of sexual assault won’t have to register as sex offenders, and those who could have been found guilty of domestic abuse will not be subject to federal restrictions prohibiting them from owning firearms.

“If you’re letting serious crimes go through the administrative separation route, you increase the possibility of a serial rapist, a child molester, going back into the community and doing it again because there’s no public record and no dissuasion,” said Joshua Kastenberg, a professor at the University of New Mexico School of Law and former Air Force judge advocate.

But such administrative separations also carry a stigma, particularly for service members charged with minor offenses, according to experts. Those who are granted permission to leave the military typically receive an “other than honorable” discharge. Such a designation strips service members of many veterans benefits and can look bad to employers, experts said.

Military commanders are not required to explain their reasoning when granting these discharges. But the news organizations found instances in which they have approved separations even in cases with witnesses, DNA evidence or confessions.

In the Fort Hood case, the ex-soldier was arrested for choking his girlfriend a year after the Army chose not to pursue charges against him for allegedly assaulting his wife. He later pleaded no contest to the charges involving his wife and guilty to charges related to the assault of his girlfriend. He declined an interview through a relative.

“I just wish that they would have done more,” Morgan Short, the second woman who accused him of assault, told ProPublica, the Tribune and Military Times.

Army officials declined to comment about individual soldiers’ cases.

Army Col. Christopher Kennebeck, chief of the criminal law division at the Office of Judge Advocate General, did not dispute the news organizations’ finding that these types of administrative separations are increasingly being used for violent crimes. He said they are intended for minor offenses or cases in which the Army is not able to meet the necessary burden of proof to win at trial. A separation from the Army is a good alternative if commanders believe wrongdoing occurred but do not have enough evidence for a conviction, he said.

“You have someone who still exists in society, still has the presumption of innocence to go on with their lives,” Kennebeck said. “It’s just that in the military, you might not be able to continue to serve.”

But former Air Force chief prosecutor Col. Don Christensen said once officials read charges in court against a soldier, as happened in each case analyzed by the news organizations, the government should be ready to go to trial. Backing away from those charges signals to Christensen, now in private practice, that the Army is concerned that it can’t win cases, which he said is its own problem.

“You have someone take an oath saying the charges were true, so it’s true that this person is violent, it’s true this person is a sex offender. But now I’m going to say that we’re just going to fire him and turn him back into civilian society without really addressing the issue,” Christensen said.

Unheeded Calls

Soldiers charged with crimes ranging from going AWOL and smoking marijuana to rape and aggravated assault with a deadly weapon can request to leave the Army rather than go to trial.

In doing so, enlisted soldiers must acknowledge that they committed an offense that could be punishable under military law. They do not have to admit guilt to a specific crime.

After an enlisted soldier’s immediate commanders weigh in with a recommendation, a senior commander overseeing the court-martial, typically a two-star general or higher, decides whether to grant the discharge in consultation with legal advisers. Officers don’t have to admit guilt, and ultimately a Pentagon official decides whether to accept the request.

The practice has no exact equivalent in the civilian justice system.

One comparison, according to legal experts, is deferred adjudication, a process that lets people accused of certain crimes avoid a conviction if they successfully complete probation without any other violations.

A key difference is that with deferred adjudication, judges, not commanders, decide and can ultimately revoke the probation and continue with the original charges if the person fails to meet the agreed-upon conditions.

In the military, however, soldiers are free to return to civilian life once a discharge is granted and there are no stipulations for revoking the agreement if the soldier gets in trouble again. And unlike in the civilian justice system, where the public can typically access court records related to a case, limited information is available in the military because the soldier was never convicted.

Federal lawmakers and some military appeals judges took issue with the lack of due process and growing use of administrative separations throughout the 1960s.

Perhaps the most significant critique of such separations came in 1978 when the federal government’s General Accounting Office, now known as the Government Accountability Office, released a report that called for ending the practice.

The report said that while military branches had used such separations “as an expedient way to get rid of problem people,” Congress never intended for the process to apply to criminal cases.

Releasing some soldiers while trying others for the same offense resulted in unequal treatment and limited the effectiveness of military courts, which “must enforce the law and also protect the rights of individual service members. They cannot accomplish these objectives if a major portion of criminal offenses are dealt with outside the judicial process,” the report stated.

But the military argued that eliminating administrative separations would increase the workload of its courts.

So the practice continued.

One Accusation, Then Another

Late one March afternoon in 2017, Faustino Vallo’s wife walked into a police station near Fort Hood, the massive Central Texas Army post where her husband of more than two years worked as a bomb technician.

Vallo had grabbed her by the neck and held his Glock handgun to her head during an argument nine days earlier, she told Killeen police. According to records detailing her account, Vallo told her that her life was over and fired a gun as she ran from the house. When she returned, he told her he didn’t mean for the gun to go off, according to her account in partially redacted military investigative files. Officers later found a bullet hole in a window screen.

A military agent’s investigation report details allegations Faustino Vallo’s wife made that the soldier pointed a loaded gun at her. (Highlighted by ProPublica and The Texas Tribune)

About six months later, as the Bell County Attorney’s Office was pursuing misdemeanor charges against Vallo, it received an email from an Army attorney. She asked that the case be transferred to Fort Hood, which had decided that it wanted to proceed with aggravated assault charges against the soldier, a private first class.

Another email arrived in March 2018, a year after the woman reported the alleged assault. Vallo’s case was scheduled to go to trial at Fort Hood at the end of the month but the commanding general had instead accepted his administrative separation request, an Army captain wrote to the county attorney’s office. He would be permitted to leave the Army within a week and receive an “other than honorable” discharge.

“He will not have been tried for the charges we brought against him,” the captain wrote.

A Fort Hood spokesperson declined a request to interview an Army attorney involved in Vallo’s case.

After the Army discharged Vallo, the Bell County Attorney’s Office decided to prosecute him as it had initially intended. That process took another year.

During that time, Vallo was arrested again for domestic assault, this time for attacking his girlfriend, Morgan Short, in Coryell County.

In early April 2019, Short had just poured herself a glass of wine when she and Vallo got into a disagreement. She said Vallo, who was also drinking, suddenly knocked the glass out of her hand and then pushed her down against the white-tiled living room floor. He put the full weight of his body on her back and began to choke her and then bite her, Short said in an interview with the news organizations.

Eventually, she said, Vallo let her go. She ran to her bedroom closet and prayed to God not to let her die. When Short tried to leave the house, she said Vallo put a gun in his mouth in front of the couple’s infant son and the young daughter he shared with his estranged wife.

“I don’t know why he didn’t kill me because I really feel like he was going to,” Short recalled.

Police in Copperas Cove, where the attack occurred, refused to release an incident report, but a story in the Killeen Daily Herald said officers observed several fresh injuries on Short.

On June 10, 2019, Vallo pleaded guilty in Coryell County to choking Short. He was fined and given five years deferred adjudication.

Days later, he pleaded no contest in Bell County to discharging a firearm for the incident involving his wife and received nine months deferred adjudication. He would not serve jail time if he followed certain conditions including that he have no access to firearms during that period.

Vallo, his estranged wife and the civilian defense attorney who represented him in the Bell County case declined interview requests for this story.

Bell County Attorney James E. Nichols said he wasn’t sure why the case took so long after his office took it back from the Army. He said he did not know if his attorneys were aware of Vallo’s Coryell County plea because prosecutors generally don’t get alerted that someone with a pending case has been arrested in another county.

Such information is critical and could have resulted in a harsher sentence in the Bell County case, said Miltonette Craig, an assistant professor in Sam Houston State University’s Department of Criminal Justice and Criminology. Nichols agreed more information about the case could have affected the judge’s decision.

Short also did not know about Vallo’s conviction in Bell County when he persuaded her to let him back into her life. It didn’t take long before he became aggressive again, records show.

On New Year’s Day 2020, Vallo had chugged a bottle of vodka and threatened to “beat my ass and leave me on the floor crawling,” Short recalled in an interview with the news organizations. At one point, she said, he locked her in the bedroom and spit in her face.

After struggling to get an answer from 911 operators, Short said she called her family, who eventually got through to police. Officers were dispatched to the home for a “violent domestic,” according to a partial incident report released by law enforcement.

A partial incident report from January 2020, released by the Killeen Police Department, shows Morgan Short’s family called 911 to report her allegation that Vallo was threatening her. (Highlighted by ProPublica and The Texas Tribune)

At the time of the report, Vallo was still under probation for both assaults. He wasn’t arrested. Short believes it was because he’d threatened her with physical violence but had not actually assaulted her.

In June, a Coryell County judge extended Vallo’s probation in connection with Short’s 2019 assault after he was twice arrested for drunk driving. The judge, who did not return a call for comment, required him to attend Alcoholics Anonymous meetings twice a week.

The drunk driving arrests were a violation of Vallo’s probation conditions. Craig said the judge could have revoked Vallo’s deferred adjudication and convicted him of the assault charge.

“I Don’t Remember Feeling Hope”

The true number of service members across the armed forces who were allowed to separate from the military instead of facing trial for serious charges is difficult to know.

Compared with other branches, the Army released the most complete court data to the news organizations under the federal Freedom of Information Act. Even the Army’s records are limited because they provide data only for cases that reach arraignment, meaning that the number of soldiers who were discharged as part of the practice is higher than what the news organizations’ analysis shows.

One area that provides some insight into the practice across all branches is the military’s handling of sexual assault. Congress has mandated more detailed reports on such cases as part of a larger crackdown.

According to those reports, more than 1,000 service members who were charged with sexually assaulting an adult from 2012 to 2021 were permitted to leave the military rather than face trial. Of those, 726 were in the Army.

Overall, the Army had the highest rate of service members — about 1 in 4 — who left despite being charged with sexual assault, according to an analysis of the reports. (The next highest branch was the Air Force, which had a rate of nearly 1 in 5.)

Tony Thomas, an Army specialist, was one of the soldiers.

A female soldier accused Thomas of sexually assaulting her on March 5, 2017, after they’d spent the night celebrating her 24th birthday in Anchorage, Alaska, where both were stationed. The woman, who spoke to the news organizations, agreed to be identified by her middle name, Hope.

By the end of the night, Hope was “obviously intoxicated,” a friend later told investigators. Thomas and a friend helped her to her barracks room because she couldn’t walk on her own. The friend then left, according to partially redacted investigative files that reference security footage from outside of the room. Thomas stayed behind.

Hope told investigators that she woke up to Thomas groping and kissing her breasts. She recalled him taking off her pants, turning her over and shoving her face into the futon. She said that she told him to stop but that he continued to sexually assault her, according to the files.

This military agent’s investigation report details allegations made by a soldier that a fellow service member, Tony Thomas, sexually assaulted her in her barracks room in March 2017. (Highlighted by ProPublica and The Texas Tribune)

Once Thomas left, Hope went to the friend’s room and said she’d slept with him and he would not stop when she told him to. “I feel horrible. I kept saying ‘no, no stop’ but he didn’t,” Hope said, according to her friend’s account in the investigative reports. Maybe it was her fault, Hope told her friend, because she was drunk and wearing “little” shorts. She then reported the assault to military authorities.

Later that day, Thomas acknowledged that he knew Hope was intoxicated and was incapable of providing consent, according to an investigator’s account of the interview. He said he’d made a mistake and admitted to the investigator that he sexually assaulted her, records show.

Thomas said he knew the woman was intoxicated and was unable to give consent, according to an investigator’s account of the interview. (Highlighted by ProPublica and The Texas Tribune)

Thomas declined to comment through a relative, who maintained the soldier’s innocence and said the punishment he received was “unjust.” His family indicated they plan to challenge his discharge status.

A DNA test of the woman’s shorts later detected Thomas’ semen. An Army prosecutor determined in July 2017 that there was probable cause Thomas committed sexual assault, records show.

Despite having an attorney and meeting with an investigator on the case, Hope said she was not aware of all of the evidence collected by prosecutors.

She began to feel like no one around her offered encouragement.

“I don’t remember feeling hope,” she said. “I don’t remember feeling confident that ‘OK, this is going to go before a judge and they’re going to actually believe what happened or they’re going to take me seriously.’”

More than a year after she accused Thomas of assault, Hope met again with an investigator on the case. By then, she had transferred to Fort Hood to avoid seeing her alleged attacker. She and her new husband had just learned she was pregnant. “I finally just kind of mulled it over and I was like: ‘I don’t want to take this to trial. I don’t want to sit on trial pregnant, reliving something that I want to just go away.’”

Hope said the investigator laid out various options, including that Thomas could be discharged instead of going to trial. She said that path seemed best to her at the time.

“I was trying to move on in my life,” she said.

Kennebeck, the Army’s criminal law director, said that commanders consider victim input and preference when deciding whether to take a case to court-martial or grant an administrative separation.

It is possible, however, to pursue a sexual assault case when a victim doesn’t want to testify, said Liz Boyce, general counsel and director of policy and legal at the Texas Association Against Sexual Assault. In the civilian system, she said, prosecutors commonly offer plea deals in such cases. The key is ensuring the victim is consulted about that decision, she said.

But discharges in lieu of trial are not plea bargains, so there is no conviction on a person’s record. The local district attorney in Anchorage could have considered pursuing charges against Thomas, under an agreement with the military, but it’s not clear if the Army shared information about his case.

Boyce said deciding not to pursue any possible legal punishment is “dangerous, frankly.”

“They’re not going to have any kind of repercussions the way a guilty verdict would have, the way a felony is going to follow you,” Boyce said.

Moving Forward

After six years and a lot of therapy, Hope says she wishes she’d chosen a different course.

She believes administrative separation “was a Band-Aid” for her case. “If I could go back now and know what I know now, no, hell no, I would have taken it to court,” she said.

For her part, Short wishes the Army had done more. She continues to wonder why military officials didn’t take Vallo to trial when his wife accused him of assault.

Vallo always gave her different explanations for why he was discharged from the Army, Short said. There was no easy way for her to access any documentation about that decision. It’s not anywhere online.

“It kind of blows my mind that they just kicked him out. And then didn’t proceed to press any charges,” Short said. “That’s insane to me. They’re enabling people to keep acting this way.”

History of These Separations

It’s not clear when administrative separations in lieu of court-martial began, but experts and records show that at least since the 1950s their primary purpose was to remove service members from the military who commanders believed were not fit to serve. That meant those who got in trouble for minor misconduct or military-specific offenses like being chronically late to formation, said Joshua Kastenberg, a professor at the University of New Mexico School of Law and former Air Force judge advocate.

The practice grew in popularity as about 2 million people were drafted into the military during the Vietnam War, bringing a slew of discipline problems. Near the beginning of the war, the various branches granted 424 such discharges. The number ballooned to nearly 27,000 soon after the war ended in 1976, according to a federal watchdog agency’s report.

Many soldiers who were discharged faced charges for being AWOL and other minor misconduct, according to experts and other archival records, which also indicated administrative separations were rarely used for serious criminal offenses at the time.

“Let’s be honest, you can’t court-martial everyone who is a discipline problem and who doesn’t want to be in the Army,” Fred Borch, a retired Army colonel and military history expert, said in an interview. “So I would say that the compromise was, ‘Hey, we have an administrative way to get rid of people who don’t want to be here without really being overwhelmed with courts-martial.’”

Borch, who served as an Army lawyer for 25 years before retiring in 2005, could not recall when the practice evolved to include soldiers accused of criminal acts but said, “You wouldn’t take a discharge like this for a rape or a murder or a robbery because, my general opinion would be, the person has got to go to jail.”

About the Data: How We Analyzed Administrative Separations in Lieu of Court-Martial

To examine the Army’s use of separations and resignations in lieu of trial, ProPublica, The Texas Tribune and Military Times used data from the Army Court-Martial Information System, which covers cases that were referred to the Army’s two highest trial courts dating back to 1989. The database does not include cases that were dismissed or resolved before they reached arraignment, which is a formal hearing when charges are read to the defendant.

The newsrooms analyzed cases in which soldiers had their charges withdrawn or dismissed administratively and were allowed to leave the service instead of facing trial, processes most commonly known as Chapter 10s for enlisted soldiers or resignations for the good of the service for officers.

We categorized crimes as violent using the National Institute of Justice’s definition, which counts cases in which a victim is harmed by violence. Such crimes include rape, sexual assault, physical assault, murder and robbery.

For our analysis, we included charges that fell under the following articles of the Uniform Code of Military Justice, standardized to the most recent edition of the Manual for Courts-Martial: 118 (murder and homicide), 119 (manslaughter), 120 (sexual assault and rape of an adult), 120B (sexual assault and rape of a child), 122 (robbery), 128 (physical assault), 128A (maiming) and 128B (domestic violence). Additionally, charges of striking or assaulting officers (commissioned and noncommissioned) are included in the analysis. (These were charged under articles 89, 90 and 91.) We classified cases with at least one of the above charges as violent, regardless of any other accompanying charges.

Our reporting on administrative separations focused on the Army, which is the nation’s largest military branch, has a significant presence in Texas and maintains the most complete court databases compared with the other military branches. Neither the Department of Defense nor any of the other branches provided separations data broken down by the type of charge.

Help ProPublica and The Texas Tribune Report on the Military Justice System

by Joshua Kaplan, Justin Elliott and Alex Mierjeski

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In a rare public statement, Supreme Court Justice Clarence Thomas responded Friday to a ProPublica report that revealed that Thomas has, for decades, accepted luxury travel from billionaire Republican megadonor Harlan Crow and failed to disclose it.

Thomas’ brief statement acknowledges joining Crow and his wife, who he described as among his “dearest friends,” on “a number of family trips” over the years. He also defended his failure to disclose them.

“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in the statement. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”

But seven legal ethics experts consulted by ProPublica, including former ethics lawyers for Congress and the White House, said the law clearly requires that gifts of transportation, including private jet flights, be disclosed. If Thomas is arguing otherwise, the experts said, he is incorrect.

A Supreme Court spokesperson did not immediately respond to questions for Thomas about the specifics of the advice he was given or who he consulted.

ProPublica’s story Thursday revealed that Thomas had taken international cruises on Crow’s superyacht, flown on Crow’s private jet and regularly vacationed at Crow’s private resort in the Adirondacks. In one instance, Thomas flew on Crow’s jet from Washington Dulles airport to New Haven, Connecticut, then flew back three hours later.

Thomas did not respond to detailed questions for that story. His statement Friday did not dispute ProPublica’s reporting about his trips. It also did not address broader criticisms from ethics experts and other judges that by repeatedly accepting such trips, he broke long-standing ethical norms for judges’ conduct.

In a previous statement to ProPublica, Crow said that Thomas “never asked for any of this hospitality” and that his treatment of the justice was “no different from the hospitality we have extended to our many other dear friends.”

A law passed in the wake of the Watergate scandal, the Ethics in Government Act, requires Supreme Court justices and many other federal officials to report most gifts to the public. Justices are generally required to report all gifts worth more than $415, defined as “anything of value” that they don’t repay the full cost of. Gifts are disclosed in an annual financial report that is made public.

There are exceptions, and experts parsing the legality of Thomas’ failure to disclose the travel have been focused on a carve-out known as the “personal hospitality” exemption.

The exemption states that gifts of “food, lodging, or entertainment received as personal hospitality” don’t have to be disclosed. The law defines “personal hospitality” in a way that further limits the exception. It only applies to gifts received from an individual at that person’s home or at properties that they or their family own.

(Source: Excerpt from the Ethics in Government Act. Highlighted by ProPublica.)

ProPublica asked the seven legal ethics experts about the exception and Thomas’ statement. All said that the law’s language clearly requires that gifts of transportation, such as private jet travel or cruises on a yacht, be disclosed and said Thomas appears to have violated the law by failing to report them.

“I don’t think you can make an argument that private jet flights need not be included under the statute,” said Stephen Gillers, a professor emeritus and ethics expert at New York University law school.

”It is absolutely impossible that anyone could reasonably interpret that exception to apply to private jet flights,” said Walter Shaub, former director of the U.S. Office of Government Ethics. “Not in any universe.”

Richard Painter, who served as the chief ethics lawyer for the George W. Bush White House, said Thomas’ explanation of why he didn’t disclose the trips “makes absolutely no sense.” Painter emphasized that the exemption only covers three categories: food, lodging and entertainment. Private jet flights would fall into none of those, he said.

“Justice Thomas likes to focus on the language of authoritative texts, and that’s not what he’s doing in this statement,” said Kathleen Clark, a legal ethics expert at Washington University in St. Louis.

Thomas himself disclosed at least one private jet flight from Crow, in his financial disclosure for 1997. He has not disclosed a trip on Crow’s plane in more than 20 years.

Reviewing other federal judges’ financial disclosure filings, ProPublica found at least six examples of judges disclosing gifts of private jet travel in recent years.

In the Ethics in Government Act, Congress explicitly stated that the law covers Supreme Court justices. But Chief Justice John Roberts has raised questions about Congress’ power to impose rules on the Supreme Court.

“The Court has never addressed whether Congress may impose those requirements on the Supreme Court,” Roberts wrote roughly a decade ago in an annual report on the judiciary. “The Justices nevertheless comply with those provisions.”

Thomas’ statement Friday does not cite the law itself but rather “disclosure guidelines” for the judiciary. The guidelines elaborate on how the law applies to the courts and are issued by the policymaking arm of the judiciary.

Thomas’ statement refers to a March update of the judiciary’s guidelines for financial disclosure. “It is, of course, my intent to follow this guidance in the future,” he said. The new guidelines explicitly say that transportation is not food, lodging or entertainment and so must be disclosed.

Questions about Thomas’ compliance with the disclosure law have come up in the past. In 2011, he announced that he was amending years’ worth of his disclosure forms because he had failed to disclose the sources of his wife, Ginni’s, income.

At the time, he cited a “misunderstanding of the filing instructions.”

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

by Jeff Ernsthausen

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Flush with $80 billion in new funding, the IRS is aiming to ramp up audits of wealthy taxpayers and large corporations, according to a strategic operating plan it released Thursday. The 150-page plan also includes a lengthy list of proposed changes intended to improve customer service, upgrade the agency’s notoriously outdated computer systems, boost hiring and even “explore making it easier” to file tax returns directly with the IRS for free.

Until a spurt of funding during the early pandemic and then the passage of the Inflation Reduction Act, the IRS had been hobbled by a decade of budget cuts, causing audit and enforcement rates to plummet. As the report notes: “Taxpayers earning $1 million or more were subject to an audit rate of just 0.7% in 2019 — a sharp decline from 7.2% in 2011. We will increase enforcement for high-income and high-wealth individuals to help ensure they are paying the taxes they owe.” It cites employment taxes, excise taxes, and estate and gift taxes as areas of focus. The plan promises to comply with a Treasury Department directive not to increase audit rates for small businesses and people making $400,000 or less.

ProPublica has been chronicling the tax agency’s woes for almost five years, first in a series titled “Gutting the IRS,” which examined the slashing of its budget and its consequences in reduced enforcement, as well as in decreased volume and quality of audits of the rich. ProPublica also published articles that showed how a person making $20,000 was more likely to be audited than a person making $400,000 and a map that revealed the geographic overlay of poverty, race and high audit rates.

ProPublica followed its first IRS series with “The Secret IRS Files,” a second multiyear series that has explored how the U.S. tax system favors the rich, including how its focus on income allows people with massive wealth to sidestep taxes on an epic scale — to the point where some of the wealthiest people, such as Jeff Bezos, had years in which they paid no federal tax.

In comments to The Washington Post about the new IRS plan, Deputy Treasury Secretary Wally Adeyemo said: “One of the things that people talk about when they say that the tax code is unfair is, if you’re low-income, you’re more likely to be audited than if you’re wealthy. ... That is not consistent with tax fairness.”

The plan, released by recently confirmed IRS Commissioner Daniel Werfel, aligns with the remarks made by President Joe Biden in his most recent State of the Union address: “I think a lot of you at home agree with me that our present tax system is simply unfair,” Biden said. He reiterated his proposal for what he calls his billionaire minimum tax, which would mandate a 20% minimum levy on income, including unrealized capital gains, for people with a net worth of $100 million or more.

The IRS plan also includes an initiative to “study the feasibility” of allowing taxpayers to file directly with the agency. That study will likely face opposition from companies such as Intuit, the maker of the widely used TurboTax software. In another series, “The TurboTax Trap,” ProPublica documented in exhaustive detail multiyear efforts taken by tax prep companies to undercut free tax-filing.

Sen. Ron Wyden, D-Ore., chair of the Senate Finance Committee, applauded the IRS plan. “The bulk of this funding,” he noted in a statement, “will go toward building up the IRS’s capacity to root out cheating by sophisticated, wealthy individuals and companies with highly complex structures.” (The Inflation Reduction Act legislation directed an additional $45.6 billion to IRS enforcement, through September 2031, on top of its previously allotted budget.)

Republicans were less enthusiastic, calling the plan “big government at its worst,” among other things. In January, House Republicans renewed their attempts to reduce the agency’s funding.

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