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[l] at 4/12/24 3:00am
by Ken Armstrong ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. A new motion has accused the elected prosecutor in Elkhart, Indiana, of misconduct, alleging she presented contradictory versions of the truth against two men in connection with a shooting that occurred more than 20 years ago. The case stems from the drive-by shooting death of a woman on Aug. 13, 2003. Prosecutors have always maintained the shooter was Ignacio Bahena. But as to who gave Bahena the gun, the prosecution offered two different versions, pinning the act on one man, then pinning it on another, according to a motion filed by one of the men’s lawyers. Both men went to prison, and one of them is still serving time for the crime and challenging his 55-year sentence. The Elkhart case is another in a line of instances across the country in which prosecutors have been accused of presenting contradictory accounts in court, depending on the defendant they’re trying. At least 29 men have been sentenced to death in the U.S. since the 1970s in cases where prosecutors were accused of presenting opposing versions of the truth, according to a search of legal cases. ProPublica wrote in February about a case in Baltimore in which federal prosecutors offered opposing versions of the truth while securing a conviction on a gun charge against a man named Keyon Paylor. Two days after that story was published, the Department of Justice reversed course and agreed Paylor’s conviction should be thrown out, writing, in a court filing, that “public confidence cannot sustain irreconcilable versions of one event.” The motion in Elkhart focuses on the actions of the county’s top prosecutor and asks that her office be disqualified from handling the case further. The motion marks another challenge to the workings of Elkhart’s criminal justice system, which has been the subject of a joint investigation by ProPublica and the South Bend Tribune. The two news organizations, as part of ProPublica’s Local Reporting Network, have reported extensively on Elkhart’s system of law enforcement, chronicling wrongful convictions, prosecutorial misconduct, and dubious investigative tactics and criminal wrongdoing by police. The Elkhart case traces to the shooting death of 20-year-old Karla Castro, who was killed when Bahena shot at and wounded her boyfriend, according to court records. Bahena fired from an SUV that pulled up next to a Ford Mustang driven by Castro’s boyfriend, according to court testimony. Bahena has never been caught. But prosecutors did charge two men who were in the SUV with him. One of the two men, Eduardo Brena, appeared in Elkhart Circuit Court in June 2004 and pleaded guilty to a felony charge for providing the gun to Bahena on the day Castro was killed. During the plea hearing, the judge walked Brena through the charge’s factual basis, making sure Brena understood and admitted each element. “Did you provide a handgun to him?” the judge asked Brena. “Yes,” Brena told the judge. The judge later asked, “Mr. Brena, did these acts occur on Aug. 13, 2003, in Elkhart County, Indiana?” “Yes, sir,” Brena told the judge. Representing the state at this hearing was Vicki Becker, who was then Elkhart County’s chief deputy prosecuting attorney. Asked if she wanted the court to accept Brena’s guilty plea, Becker told the judge, “Yes, I do, your Honor,” according to a court transcript. The following month, in July 2004, Becker represented the state at Brena’s sentencing. She said Brena “recklessly provided that handgun” to Bahena and “enabled” the shooting to happen. The judge sentenced Brena to six years on the gun charge. The second man charged in this case, Rodolfo Alexander, stood trial in March 2005, accused of being an accomplice to Castro’s murder. Alexander had been driving the SUV at the time of the shooting, prosecution witnesses told the jury. The prosecutor at Alexander’s trial was Becker, the same prosecutor who had been in court for Brena’s guilty plea. She called Brena as a witness, and Brena, on the stand, contradicted what he had said in court the year before. He testified that he gave the gun not to Bahena on the day of the shooting, but to Alexander a couple of days before the shooting. Alexander thereafter passed the gun along to Bahena, the eventual shooter. “And so was it OK with you” that Alexander gave the gun to Bahena? Becker asked. “Yes, ma’am,” Brena said. By putting Brena on the stand at Alexander’s trial — and having Brena provide an account that contradicted what he had said at his own plea hearing — Becker committed misconduct by knowingly presenting false testimony, the recent motion from Alexander’s lawyers says. Alexander was convicted of murder, as an accomplice, and sentenced to 55 years. Prosecutors maintained that in addition to supplying the weapon, Alexander positioned the SUV in a way that helped Bahena open fire on the other car. Alexander’s initial appeal was denied in November 2005; his subsequent appeals have dragged on for years. Becker, the prosecutor in both the Brena and Alexander cases, won election in 2016 to be the county’s top prosecutor. She has held the position ever since. When contacted by ProPublica, Becker declined to comment on the allegation from Alexander’s attorneys that she committed misconduct. “As this is an actively pending matter, I am not able to engage in an interview of any kind regarding the case, nor may a representative of the State. All information should come from observing the public proceedings at this time. Thank you for reaching out,” Becker wrote in an email. One of Alexander’s lawyers, Kevin Murphy, with Notre Dame Law School’s Exoneration Justice Clinic, also declined to comment. (Christian Sheckler, a former South Bend Tribune reporter who worked with ProPublica on stories published in 2018 and 2019 about Elkhart’s criminal justice system, became an investigator for the clinic in 2022.) ProPublica could not locate Brena to seek comment. In March, Alexander’s lawyers filed a motion asking that a special prosecutor be appointed to the case and that Becker and her office be disqualified. The lawyers expect Becker to be a central witness in an upcoming appellate hearing, so she has a conflict of interest, the motion says. As of Thursday, Becker’s office had not yet filed a response to the motion and its allegations, according to court records.
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[l] at 4/11/24 3:00am
by Abrahm Lustgarten 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 an excerpt from the book “On The Move: The Overheating Earth and the Uprooting of America,” about climate migration in the U.S. For more, see abrahm.com. Another great American migration is now underway, this time forced by the warming that is altering how and where people can live. For now, it’s just a trickle. But in the corners of the country’s most vulnerable landscapes — on the shores of its sinking bayous and on the eroding bluffs of its coastal defenses — populations are already in disarray. A couple of miles west of downtown Slidell, Louisiana, and just upstream from the broad expanse of Lake Pontchartrain — the 40-by-24-mile-wide brackish estuary separating what is now the mainland from New Orleans — a five-room shotgun house sits on a plot of marshy lawn near the edge of Liberty Bayou. Colette Pichon Battle’s mother had been born in that house. Colette, bright-eyed and ambitious, devoutly Catholic, a force on the volleyball court, was raised in the house until the day she left for college. The family’s very identity had grown from the waters of the marsh around it. From a humble rectangle of wood, framed onto brick stanchions that kept it hovering several feet above the ground, shaded by the long beards of Spanish moss hanging from the limbs of towering oaks and a hardy pine, a family was born. Its Creole heritage near the acre of low-lying land goes deeper than the trees, deeper than the United States as a nation, to around 1770. Those roots withstood the tests of centuries: slavery, war and more than their share of storms. Then, Hurricane Katrina arrived. Colette was in her law office in Washington, D.C., in 2005 when she saw a graphic weather forecast on the television screen: a swirling monster of a Category 5 storm, broader than anything she’d ever seen before, was headed straight for her family home. She rushed into a conference room and called her mother. On the bayou, people don’t run from storms. They cope with a familiar nuisance the way Minnesotans cope with the snow. For all Colette’s life, the hurricanes that routinely swept Louisiana were more cause for bonding than for fear — families would gather in one place, bringing the food that had to be eaten before the power went down, and they’d barbecue it and talk and share stories while the storm passed overhead. That the water would sometimes come wasn’t a surprise; it was why the home was elevated. But time and warming and the erosion of a protective coastline had already changed the nature of the storms. And Katrina looked different. “I need you to get out of there,” Colette told her mom. Mary Pichon Battle, a vibrant 60-year-old schoolteacher, had raised her children to travel the world. She was a living tie to Liberty Bayou’s rich history, one of the last remaining people there still fluent in the Creole language. And she’d clung to that home, even with the boot of Louisiana on her back, throughout the Civil Rights era, all while raising Colette, teaching her French and Creole, and then sending her off to Kenyon College in Ohio, and to law school at Southern University in Baton Rouge. Liberty Bayou wasn’t just an asset. It was her history, her identity. She saw no reason to leave. Colette, though, acting on instinct more than habit, was insistent. Mary would drive to her brother’s house in Breaux Bridge, just a few hours away. It would only be for a couple of days. Then she’d be back. All around, people were taking flight. The displaced from New Orleans and the coastlines headed north toward higher ground, gathering the people of Slidell along with them. When the storm hit, it pushed a surge of waters across the lake onto its north shore. The shotgun house filled steadily, the water pushing Mary’s cherished paintings of Jesus off their hooks and setting them afloat, along with the contents of boxes of family photographs — prints of Colette and her twin brother as babies; photos of her grandmother, a beauty, before she used a wheelchair. All were carried toward the rafters, and lost, as the peak of the house’s tin roof disappeared. Slidell was inundated by tidal surges more than 20 feet deep. The water washed through buildings downtown at head height, transforming the entirety of the flat, low-lying landscape into a sea pocked only by occasional trees and obstacles jutting from the water. By the time those surging waters sloshed back into the lake, flowing south again to overcome the levees around New Orleans, the community of Liberty Bayou, for the most part, had already been destroyed. Mary Pichon Battle, who’d packed just three days’ worth of clothes and left a lifetime’s worth of belongings, had little to come home to. The house was unlivable. “It was in the water, in the ocean,” Colette recounted. “The tidal surge took it.” And much of Slidell had gone with it. As tens of thousands of people continued to leave the wreckage of Louisiana in the weeks and months following the storm — and Mary remained a refugee — Colette moved back home. Fifteen generations on the bayou, a legacy in jeopardy, exerted a gravitational pull she could not resist. The devastation spoke to her. The rebuilding beckoned. She thought about the survivors. Colette Pichon Battle at her family home on Liberty Bayou, outside Slidell (Abrahm Lustgarten/ProPublica) “There are these trees here,” she says, describing the deeply rooted, majestic oaks that dot the landscape of southern Louisiana and the Mississippi coast. The tidal surge snapped the pines like Pixy Stix. The briny ocean water turned grasses brown and dead, killing animals and fish both, along with flowers and shrubs. “Not everything made it,” she said, “but these trees, these oaks, they made it. And they stood.” Colette knew that her home might never be rebuilt. She knew her mother might never come back. But she tells the story, grasping for an explanation for why she herself returned, trying to find words that could describe the role she felt suddenly compelled to fulfill. “And I feel more like that, right?” she says, comparing herself to the aged oaks. “I feel like that. I’m watching other trees go down, I’m watching changes, but I’ve got the roots that are strong enough to hold.” And so Colette became the resistance, pushing back against all the forces arrayed against her: the storm after the storm. She thought, at the time, she’d join a great healing, the rebuilding that would bring her mother home and the restoration of all the ties that gave life there meaning. She would bring the whole Bayou home. She began to talk about the risks in terms that the bayou communities around her could not recognize. She warned that if they failed to rebuild, to be resilient, the only option would be to migrate away from Louisiana’s southern coast — that while the recovery from the storm looked bleak, the alternative could be far worse. “People thought we were crazy,” she says, “but that’s how it begins.” People have always moved as their environment has changed. But today, the climate is warming faster, and the population is larger, than at any point in history. As the U.S. gets hotter, its coastal waters rise higher, its wildfires burn larger and its droughts last longer, the notion that humankind can triumph over nature is fading, and with it, slowly, goes the belief that self-determination and personal preference can be the driving factors in choosing where to live. Scientific modeling of these pressures suggest a sweeping change is coming in the shape and location of communities across America, a change that promises to transform the country’s politics, culture and economy. It has already begun. More Americans are displaced by catastrophic climate-change-driven storms and floods and fires every year. The Internal Displacement Monitoring Centre, the global nongovernmental organization researchers rely on to measure the number of people forcibly cast out of their homes by natural disasters, counted very few displaced Americans in 2009, 2010 and 2011, years in which few natural disasters struck the United States. But by 2016 the numbers had begun to surge, with between 1 million and 1.7 million newly displaced people annually. The disasters and heat waves each year have become legion. But the statistics show the human side of what has appeared to be a turning point in both the severity and frequency of wildfires and hurricanes. As the number of displaced people continues to grow, an ever-larger portion of those affected will make their moves permanent, migrating to safer ground or supportive communities. They will do so either because a singular disaster like the 2018 wildfire in Paradise, California — or Hurricane Harvey, which struck the Texas and Louisiana coasts — is so destructive it forces them to, or because the subtler “slow onset” change in their surroundings gradually grows so intolerable, uncomfortable or inconvenient that they make the decision to leave, proactively, by choice. In a 2021 study published in the journal Climatic Change, researchers found that 57% of the Americans they surveyed believed that changes in their climate would push them to consider a move sometime in the next decade. Also in 2021, the national real estate firm Redfin conducted a similar nationwide survey, finding that nearly half of Americans who planned to move that year said that climate risks were already driving their decisions. Some 52% of people moving from the West said that rising and extreme heat was a factor, and 48% of respondents moving from the Northeast pointed to sea level rise as their predominant threat. Roughly one in four Americans surveyed told Redfin they would no longer consider a move to a region facing extreme heat, no matter how much more affordable that location was. And nearly one-third of people said that “there was no price at which” they would consider buying a home in a coastal region affected by rising seas. When Redfin broadened its survey to include more than a thousand people who had not yet decided to move, a whopping 75% of them said that they would think twice before buying a home in a place facing rising heat or other climate risks. Global migration experts say that what is happening in Louisiana is a textbook case of how climate-driven migration begins: First, people resist their new reality. Second, they make modest, incremental adjustments to where they live. Slidell, after all, is still within commuting distance of friends and jobs in St. Bernard Parish to the south. Third, they climb the ladder toward a safer place, rest on a rung for a while, and then continue on, only to be replaced by others worse off than they are, climbing up behind them. What Colette hoped to avoid was the situation unfolding to her south, in the small Indigenous community of Isle de Jean Charles. There, Biloxi, Chitimacha and Choctaw people were clinging to an exposed tendril of Louisiana’s subsiding land. The Choctaw people had escaped to the south in the first half of the 19th century, finding refuge in the rural wild marshes of the uninhabited coast as white Americans pursued a brutal campaign of ethnic cleansing that drove the rest of the tribe — and tens of thousands of others — west on the Trail of Tears. Nearly 200 years later, the descendants of those exiles described a land where horses and cattle roamed across solid earth and their grandfathers slung freshwater bass and catfish out of Lake Tambour. The area now referred to as the Isle covered 22,000 acres. But then the waters began to rise. Levees built along the Mississippi blocked the natural flow of sediment to replenish the marsh soils, while the oil companies dug thousands of miles of canals. The canals allowed salt water to overcome freshwater marshes, choking off plant life that also nourished the delicate ecosystem. It killed the wetlands and led the land to subside and erode. All the while, the climate got hotter, and the water levels of the Gulf of Mexico rose, doubling the effect of the change. Lake Tambour became a map label in an open sea of salt water. Today, 98% of the Isle’s land is gone. When the U.S. Army Corps of Engineers began to build a 72-mile system of levees, dams and locks to protect the southern Louisiana coast in the early 2000s, it decided it was too expensive to include Isle de Jean Charles, and so it cut the small Indigenous community of around 325 people out of the protection zone. Isle de Jean Charles was forsaken as irredeemable, counted among the first sacrifices of sovereign land that the U.S. government would make to climate change. And ever since the Corps’ decision, the people living there have been forced to consider where they’ll go when they lose their land entirely. By the time of Katrina, they had started to negotiate a way out — a total and complete retreat. It seemed likely that a community that had held together for hundreds of years would be scattered on the wind. Their hope was that if they fled all at once, they could move together. Perhaps the fabric of community and spiritual support, and the legacy of culture and heritage, could be preserved. It just might have to be moved somewhere else, though. Colette Pichon Battle watched that painful progression to her south and wanted nothing of it. Her heart ached at the injustice she observed there, where an Indigenous tribal community could not rally the same protections from their representatives in the towering capitol buildings in Baton Rouge and Washington as the wealthier, white towns around them, and where they were left to fend for themselves against the consequences of an upheaval they did not cause. In her town, the rebuilding process unfolded slowly. The displaced, she said, returned on weekends, driving determinedly from Atlanta or Dallas to swing hammers and cart off debris. Mary Pichon Battle, who had moved to join family in Dallas, visited once in a while, too. But when she came, little was familiar. St. Genevieve’s, the Catholic church with its small cupola sitting on an idyllic grassy shoreline on the edge of the bayou, had collapsed into a heap of broken red brick. Never mind that right up until the storm the congregants sat segregated, with Slidell’s white residents on one side and its Creole parishioners on the other. To Mary it represented home and God, so she joined makeshift prayer sessions on the heavily damaged church grounds, gathering in the shade of a majestic oak tree. Colette and her mother both thought only about the day the homecoming could be permanent. But a tree on uneven ground under the hot Louisiana sun was no match for Mary’s ever-more frail and tired body — even if it did offer a reunion of brothers and neighbors. The discomfort began to overshadow the joy. In town, the visits grew demoralizing and progress less and less visible. Abandonment began to happen quietly. “At first, after the storm, it’s volunteers pulling out trash,” says Colette, about all the work the community did in the months after the disaster. “Then, it’s not destruction, but the aftermath of destruction.” Streets and yards get cleaned up, but homes are not yet rebuilt and people still do not live there. The faces in the grocery store remain unfamiliar, the fence-line conversations with neighbors infrequent, the fence lines themselves overgrown with vines because there is no one there to tend them. This stage, the reconstruction stage, demands that people dig deep into their pockets and savings — often savings they do not have. Each visit back to Slidell becomes a reminder of the burden and the stress. Eventually, the space between the trips got longer, and more painful. The fights with the government and insurers for payment became more desperate, and less successful and more exhausting. The applications for federal and state aid more futile, and less fair. The years passed, and suddenly it was a decade since the storm. Eventually, people gave up. So began another stage of migration, not the stage in which people flee, but the one in which they decide never to come home. In Slidell, the periodic visits were saved for special occasions, crawfish boils, communions and funerals. Then, even those slowed. “You realize they got their voting card in a different city … or it just became easier to go to church at your kids’ home in Atlanta or wherever,” Colette says. “Your community is now dispersed across the U.S., and the thing that kept us together was proximity and seeing each other all the time. And so eventually, you lose the culture.” Her mother, Mary, was never to return home. Slidell’s Creole existence — the language — slipped away with her. She had graduated from “climate displaced” to “climate migrant.” That is not to say that Slidell, though, shriveled up and died, the way Isle de Jean Charles was dying. Viewed through the lens of climate migration, Slidell, and all of St. Tammany Parish around it, was a confounding place. Because even as those who were displaced found it unlivable, others found it irresistibly inviting. The dramatic change facing southern Louisiana was relative — better for some than where they began, worse for others for the fragility it brought. Though Slidell’s loss was devastating for Colette and the long-standing community she’d been raised in, the small city seemed like refuge to people coming from farther south. And so it became a stopping point for climate evacuees fleeing from other, even more vulnerable places. Even today in Slidell, people can’t decide if they are coming or going. The small city is strangely booming. There are some 60 miles still between Slidell and the actual coast of the state of Louisiana. In late 2022, I drove east on State Route 90 north of Houma, then south along vanishing branches of land until I reached what felt like the end of the earth. Billboards advertised Hurricaneaid.com, and in places huge trees lay lodged against the broken walls they’d fallen on during Ida a year earlier. The roofs of many houses still had gaping holes, all signs that people here were unable to recover from one storm before the next one hit. Soon enough, though, it’s not the dilapidation, but the water that commands my attention. It is suddenly everywhere. Just as when you’re standing on a broad, flat beach while the tide comes in, you almost don’t notice the loss of land until it is already gone. Lawns fade into water, which looks swollen and rises right to the joists of the bridges that connect each driveway to the main road. The farther south I go, the closer the water comes to the pavement, until it is but an inch or two shy and in places spills out over it. More and more homes here, entering the towns of Montegut and then Pointe-aux-Chenes, sit destroyed from earlier storms, and there are fewer signs of rebuilding, more indications of surrender. Boats sit dry and askew on their hulls in driveways. I pass what looks like a small orange spaceship — a flying saucer of metal with sealed portal windows like a submarine. It is an escape pod, likely washed ashore from one of the large oil platforms in the Gulf. And there is a sense that here, too, people will one day need it. Then the road ends. It had to end. I bumped up over a levee and passed through an enormous steel floodgate, 15 feet high, at least 5 feet thick, built in 2017 as a part of the larger coastal hurricane protection system that is the state’s last defense. On the other side, the expansive, sunny sky drops straight to the water, which, though calm and at low tide, now brims over the top of the road and into a parking lot. On this day, the lot is full of pickup trucks and boat trailers belonging to people who drove here, to the end of the road, for a day of fishing. In the distance, the scraggly skeletons of tall, once-majestic trees reach up out of the cordgrass, a reminder that not long ago this wasn’t marshland at all. To the right, across a canal and outside the protection zone of the levee, I can see Isle de Jean Charles. A sign on the side of the marina building with half its roof torn off reads, “Bayou Living. Kick back and relax.” The Pointe Aux Chenes Marina, where Lower Highway 665 runs into Lake Barre and the Gulf of Mexico, past the mechanical floodgates (Abrahm Lustgarten/ProPublica) In the 18 years since Katrina, Louisiana’s southernmost territories had started to hollow out, steadily accelerating their quiet migration northward as Louisianans fled their coast. It is, indeed, the next great migration already well underway. In St. Bernard Parish, the thin escarpment of delicate soil still extending east from downtown New Orleans and the levees of the Mississippi River, the population has decreased by 39%. The houses that remain tower above the land, having been raised on to stilts 10 feet — even 25 feet — into the sky. They indicate that the people who remain are committed to live on land they know is disappearing, and that they will stay there, for a while longer anyway, content to treat their homes like islands. In Orleans Parish, just a few miles south of Slidell across the Interstate 10 bridge, there are 17% fewer residents today than in 2005. In New Orleans itself, where more than two-thirds of the city’s residents left during Hurricane Katrina, the population still hasn’t recovered. Katrina, it turns out, wasn’t a singular anomalous crisis. It was the beginning of a new era in which the reality of the storms and coastal surges was plain to see and looked nothing like the past. People began to realize that adaptation was less of an option than it used to be. Many simply had to leave. Almost every parish closest to the coast — parishes that have been protected by seawalls and levees, or whose residents have taken advantage of decades of subsidized coastal insurance and federal flood insurance programs incentivizing people to stay and rebuild — has been fast losing population despite those efforts. In those places all the legal mechanisms and incentives that for decades blinded society to the real costs of climate change are beginning to crumble as the true scale of change looms on the horizon. And yet the population of St. Tammany Parish, where Slidell and Liberty Bayou are, has grown by 40%. People flee. And others arrive. Slidell has become the odd epicenter of America’s new era of climate migration. In 2012, a new seawall was built around the inner core of Slidell, and thousands of new homes were erected across bulldozed spits of marshland infill. Families leaving the parishes farther south stopped here. The price of homes has skyrocketed, driving gentrification that makes it even more difficult for poorer, long-standing residents to rebuild or to find a new home. Traffic is a growing concern; when a single dry causeway is all that connects islands, a car accident can grind life to a standstill. And state and local officials here have adopted language used by migration experts around the world, calling Slidell a “receiver community,” as refugees from the land south of it take new homes. It all goes to show that there will be no clear-cut boundaries or perfect tipping points for climate and migration. Change, here, means two steps forward and one back, as a mélange of competing and conflicting interests all swirl in cycles of short-term opportunities that may later recede to reveal the persistence of long-term trends. A place can grow even as its core shrivels. A climate migration event, as it begins, comes into focus not as a sharply defined arrow pointing north, but as a hodgepodge of conflicting signals. It suggests that even as the nation’s population shifts north — which on balance it inevitably will — and receiving communities must prepare for mass migration, a part of this evolution will be the story of those who remain in place. And it billboards the fact that new policies and leadership will be demanded by these circumstances, not just to help growing places plan for their future, but to soften the landing of the people left behind. It’s a strange phenomenon to see residents from Louisiana’s southern coast taking refuge in Slidell, because Slidell isn’t exactly high ground. Much of the city is merely 13 feet above sea level. Parts of it, including the bayou where Colette’s family home is, are significantly lower. So when the people in St. Tammany Parish compete for access to this place and approve building permits for a thousand homes on spits of land with only gabion walls — structures of wire filled with stone — to protect them against the waves of Lake Pontchartrain, what they are really fighting for are the slivers of slightly higher ground, the marginal leftovers, so to speak, between New Orleans to the south and Baton Rouge to the west. Here, the lenders will still lend and the insurers will still engage. But for how long? Eventually, the lands encircling Slidell are going to be worse off than they are today, and the people moving there may well have no choice but to move on again. In 50 years, according to St. Tammany Parish’s own planning documents, the region encircling Slidell could often be under 6 to 15 feet of water, except for the core protected by a levee. And yet they build anyway. Several years after Katrina, Colette sat in a community auditorium to hear a team of professors describe the coming sea level changes to the people who lived in the parish. The professors showed a series of time-lapse satellite images of a receding and flooded shoreline. It was something already well-known to researchers, but this was the first time Colette recalls it being shown to the people living in the places that were to be affected. “You see your community is going, and they tell you that this is going to happen no matter what,” Colette said. “So even if we are successful in what we do next, we will lose those places. I couldn’t believe what I saw, that this place I hold so dear and that I have such a long memory of, all of those stories are going to go. Who I am and what I am describing is going to be lost. It’s surreal. That land for me and the right to be there was tied to our freedom. It was the difference between being enslaved and not. And to lose that was to lose everything.”
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[l] at 4/10/24 5:00am
by Audrey Dutton ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. After decades of detaining psychiatric patients in maximum security prison cells, Idaho is finally on the verge of building a secure mental health facility that would house those with serious mental illness more humanely. Idaho Gov. Brad Little on Monday signed into law a bill, passed with bipartisan support, to allocate $25 million to construct a facility. It would have 26 beds, with 16 dedicated to patients who display violent behaviors and whose mental illness is so severe that they are put into involuntary treatment by court order. The action follows a ProPublica article in December that found that Idaho lawmakers and state officials were told at least 14 times since 1954 that the state needed a secure mental health unit, separate from a prison, and at least eight times since 1974 that locking away patients without a conviction could violate their civil rights and invite a lawsuit. The patients haven’t been convicted or, in many cases, even charged with a crime. Idaho Department of Correction Director Josh Tewalt reiterated the need for a new facility in February, when he presented the agency’s budget to the Joint Finance-Appropriations Committee. Tewalt had just toured the prison’s psychiatric unit with the governor and lieutenant governor, and they saw four patients that day “that were civil commits, that had never been convicted of a crime, that are being housed at the Idaho Maximum Security Institution,” he told the committee. Idaho’s prison staff are expected to provide mental health care in a place “that was designed specifically to incapacitate,” Tewalt said. “It’s a practice that has a significant amount of risk for us as a state,” he said. “Not having a secure environment that is not a prison is — is problematic. And other states have dealt with the consequences of that through judicial intervention. So, I think this is a problem that isn’t going to go away. It’s one that continues to worsen.” The Idaho Department of Correction doesn’t yet know the timeline for construction of the facility, which is expected to go on state-owned land south of Boise. C Block holds the acute behavioral health unit of the Idaho Maximum Security Institution. The prison block is divided into three sections, one of which has nine cells for men considered “dangerously mentally ill.” They include patients who haven’t been charged or convicted of a crime. (Sarah A. Miller for ProPublica) Mental health advocate Marilyn Sword was among the first to warn Idaho legislators in the 1970s that it was unwise, and maybe illegal, to put a corrections agency in charge of noncriminal patient care. That was sold as a temporary arrangement while the state created a secure unit. “Who knew ‘temporary’ would be 50 years!” Sword told ProPublica in a text message last week. “I will be watching what happens with location and construction and, of course, an appropriation to [the Idaho Department of Health and Welfare] next year to staff the unit.” Little attempted in 2023 to get funding for a new facility, but the Legislature’s budget committee declined to vote on it. A month after ProPublica’s article, Little brought back his proposal. The budget committee voted almost unanimously last month to approve the new facility. Members of Idaho’s Republican-controlled House and Senate approved the funding package last week. Rep. Wendy Horman, a Republican from East Idaho who co-chairs the budget committee, told ProPublica that, when she saw the article in December, she immediately called the Legislature’s budget division manager and spoke with Tewalt. Horman said the catalyst for her decision to support the project was simple: This time, she had more information. “I do think that brought attention to the problem,” Horman said of ProPublica’s reporting. Tewalt said the article “absolutely” played a role in legislators’ decisions about funding the facility. The reporting seemed to create among policymakers “almost a sense of urgency to understand this issue better, to figure out how they could try to be helpful in solving,” he said. “And, you know, fortunately, it came at a time where it’s not because we’re being ordered by the courts to do something.” Do You Have a Tip for ProPublica? Help Us Do Journalism.
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[l] at 4/10/24 4:00am
by Craig Silverman and Peter Elkind ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. Federal authorities are investigating the involvement of Chinese organized crime rings in gift card fraud schemes that have stolen hundreds of millions of dollars or more from American consumers. The U.S. Department of Homeland Security has launched a task force, whose existence has not previously been reported, to combat a scheme known as “card draining,” in which thieves use stolen or altered card numbers to siphon off money before the owner can spend it. The initiative has been dubbed “Project Red Hook,” for the perpetrators’ ties to China and their exploitation of cards hung in store kiosks on “J-hooks.” This marks the first time that federal authorities have focused on the role of Chinese organized crime in gift card fraud and devoted resources to fighting it. Homeland Security began prioritizing gift card fraud late last year in response to a flurry of consumer complaints and arrests connected to card draining. Over the past 18 months, law enforcement across the country has arrested about 100 people for card draining, of whom 80 to 90 are Chinese nationals or Chinese Americans, according to Adam Parks, a Homeland Security assistant special agent in charge based in Baton Rouge, Louisiana. Parks, who is leading the task force, estimates that another 1,000 people could be involved in card draining in the U.S., mostly as runners for the gangs. “We’re talking hundreds of millions of dollars, potentially billions of dollars, [and] that’s a substantial risk to our economy and to people’s confidence in their retail environment,” he told ProPublica. Card draining is when criminals remove gift cards from a store display, open them in a separate location, and either record the card numbers and PINs or replace them with a new barcode. The crooks then repair the packaging, return to a store and place the cards back on a rack. When a customer unwittingly selects and loads money onto a tampered card, the criminal is able to access the card online and steal the balance. Federal investigators believe multiple Chinese criminal organizations are involved in card draining and are using the proceeds to fund other illicit activities, from narcotics to human trafficking, according to Parks. ProPublica recently revealed Chinese organized crime’s involvement in the illegal U.S. cannabis industry and the laundering of cocaine, heroin and fentanyl profits. ProPublica has also exposed how Walmart and other retailers have facilitated the spread of gift card fraud and has revealed the role of Chinese fraud rings in gift card laundering. The DHS team in Baton Rouge led an investigation that resulted in the conviction and 2023 sentencing to prison of a Canadian man who stole more than $22 million by operating an illicit online gift card marketplace that victimized American consumers and businesses. As arrests for card draining began piling up around the country, Parks and special agent Dariush Vollenweider saw the need for a national response. Last November, they convened a two-day summit at DHS headquarters in Washington, D.C., attended by many of the country’s top retailers and gift card suppliers, including Walmart. Federal authorities pushed the industry to share information and help thwart the gangs. The agency then issued a bulletin in December alerting law enforcement across the country about the card-tampering tactics. Parks said about 15 Homeland Security agents are now spending most of their time on Project Red Hook. “It’s not just a one-store problem,” Vollenweider said. “It’s not just a Secret Service or DHS or FBI problem. It’s an industry problem that needs to be addressed.” The Illinois State Police found hundreds of altered gift cards in the back of a car during a traffic stop in January 2023. (United States District Court) Americans are expected to spend more than $200 billion on gift cards this year, according to an industry estimate. Retailers love gift cards because they drive sales and profit: Consumers typically spend more than a card’s value when they shop, and chains like Walmart and Target earn a profit when someone buys a third-party gift card, such as those from Apple or Google. Data from retailers and consumers shows that card draining has skyrocketed in recent years. Target alone has seen $300 million stolen from customers due to card draining, according to comments last June from a company loss prevention officer contained in a Florida sheriff’s office report. A recent survey by AARP, the nonprofit advocacy group for people over age 50, found that almost a quarter of Americans have given or received a card with no balance on it, presumably because the money had been stolen. More than half of victims surveyed said they couldn’t get a credit or refund. (Apple, Walmart and Target say, in their terms and conditions, that they are not responsible for lost or stolen gift cards.) More broadly, almost 60% of retailers said they experienced anincrease in gift card scams between 2022 and 2023. Between 2019 and 2023, Americans lost close to $1 billion to card draining and other gift card scams, according to the Federal Trade Commission. Target and Walmart have faced class-action suits from consumers who bought or received gift cards only to discover the balance had been stolen. In each case, the plaintiffs alleged that the companies have failed to secure the packaging of gift cards and to monitor their displays. “The tampering of Gift Cards purchased from Target is rampant and widespread and Target is well-aware of the problem, yet Target continues to sell unsecure Gift Cards susceptible to tampering without warning consumers of this fact,” reads the complaint in the Target case. The Walmart case was resolved in 2022 with an undisclosed settlement, and Target is engaged in settlement talks. Apple settled a similar card-draining class-action case in January, agreeing to pay $1.8 million. Walmart and Apple did not admit liability. Apple declined to comment about card draining and the DHS investigation. In court filings in the class-action, Apple said that since the cards were purchased at Walmart, “the fraud occurred as a result of Walmart’s security protocols, rather than Apple’s.” A Walmart spokesperson told ProPublica, “Although we will not comment on ongoing investigations, we are proud of our routine work with federal law enforcement to stay ahead of these fraudsters and help keep customers safe.” Target denied in court filings that its gift card security practices were inadequate and that its cards were susceptible to third-party tampering. “We are aware of the prevalence of gift card tampering and take this issue very seriously,” Target said in a statement to ProPublica. “Our cyber fraud and abuse team uses technical controls to help protect guests, and our store teams inspect cards for physical signs of tampering.” Target said it encourages employees to watch for people buying “high dollar amounts or large quantities of gift cards, or tampering with gift cards in stores.” LIke Walmart, Target said it works closely with law enforcement. Gift card scammers linked to Chinese criminal organizations trick their victims in many ways besides card draining. Some scams dupe victims into unwittingly paying criminals with gift cards. Whatever the ruse, the crime rings make use of low-level “runners” in the U.S., who are almost exclusively Chinese nationals or Chinese Americans. In card draining, the runners assist with removing, tampering and restocking of gift cards, according to court documents and investigators. A single runner driving from store to store can swipe or return thousands of tampered cards to racks in a short time. “What they do is they just fly into the city and they get a rental car and they just hit every big-box location that they can find along a corridor off an interstate,” said Parks. In a 24-hour period last December, an alleged runner named Ming Xue visited 14 Walmarts in Ohio before being arrested, according to court documents. Police said they found 2,260 Visa, Apple and Mastercard gift cards in his car. Xue entered the U.S. illegally months before his arrest, according to a prosecution motion. He has pleaded innocent. DHS is looking at whether Chinese criminal organizations bring people into the U.S. to use them as card-draining runners. John Cassara, a retired federal agent and the author of “China-Specified Unlawful Activities: CCP Inc., Transnational Crime and Money Laundering,” said Chinese criminal enterprises often smuggle workers across the border for other enterprises such as prostitution or growing marijuana. Parks said investigators are aware that “some of the individuals who were arrested were within weeks to months of being encountered illegally crossing the southern border.” Other alleged card-draining runners entered the U.S. legally and told police they were hired via online postings. Donghui Liao was arrested at a Florida Target after employees noticed him removing gift cards from a bag and placing them on racks. Through a translator, he told police that his employer hired him online and mailed gift cards to him, according to court documents. He was paid 30 cents for each card he returned to the rack. Police said they found $60,000 worth of tampered cards in his possession. Liao remains in custody and his case was recently transferred to federal court. The DOJ did not respond to requests for comment and Liao has pleaded innocent. In New Hampshire, police arrested three people between December and March for, among other alleged crimes, using stolen gift card balances to purchase millions of dollars worth of electronics such as iPhones. An apartment used by two of the suspects contained “a large quantity of Apple brand devices, cash, and a computer program that appeared to be running gift card numbers, in real-time,” according to a police report. (Criminals use software to automatically check gift card balances so they can be alerted when a customer buys and loads money onto a tampered card.) The fraudsters typically export the electronics back to China to resell them, according to Vollenweider. Parks said Red Hook is recommending anti-fraud measures to retailers, such as closer scrutiny of gift card displays, while also heightening awareness of the problem among merchants and local law enforcement. Store security and local police have sometimes treated runners as small-time annoyances and booted them from stores, rather than arresting and prosecuting them, according to Parks. The task force hopes to work with local police to locate and charge previously released runners. “It’s important for us to start delivering consequences,” he said. Doris Burke contributed research.
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[l] at 4/10/24 3:00am
by Heather Vogell ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. When my sons were young, ads promoting formula made especially for toddlers appeared unsolicited in my mailbox. I found them curious. My kids drank cow’s milk when needed. It cost less and worked just fine. Little more than a decade later, my questions about the product would fuel reporting that took me half a world away, to Thailand, where public health officials were trying to stop similar formula marketing. I found they’d encountered an adversary that many Americans, including myself, might find surprising: the U.S. government. I started looking at the baby formula industry in the wake of the 2022 shortage, when supply-chain problems and the shutdown of a Michigan formula plant amid contamination concerns led to scarcity. But my reporting soon took another turn. After academics and health advocates told me that U.S. officials had for decades opposed regulations abroad related to formula marketing, I woke up before dawn one morning last March to watch the livestreamed meeting of an international food standards body in Dusseldorf, Germany. The topic was a new standard on toddler milk — the very product I’d wondered about years before. I saw the U.S. delegation, which included formula industry representatives as well as government officials, raise objections. They were concerned with language mentioning World Health Organization recommendations on banning formula advertising. After that meeting, I filed dozens of information requests to federal agencies, seeking to understand more about the U.S. position on formula regulation. I reached out to health advocates working for nongovernmental organizations around the world, videoconferencing with them late at night and in the early morning to accommodate different time zones. I learned countries around the world had sought to outlaw the marketing of toddler formula in recent years, sometimes by extending baby formula advertising bans they already had in place. Health experts say aggressive formula marketing — such as steep discounts and free samples — can make misleading claims and prompt mothers to prematurely give up breastfeeding. The industry has a troubled history. In the 1970s, it was accused of causing thousands of infant deaths in Africa and other developing regions by promoting powdered formula to families without access to clean water. In statements emailed to me, the formula industry acknowledged that breastfeeding is superior but said families sometimes need a safe alternative. I knew from experience that the choices parents make in feeding their children are never simple. Breastfeeding has well-documented health benefits, including lowering the risk of infant death and obesity later in life, but it is time-consuming and can be logistically difficult. Still, health officials around the world told me they wanted to make sure that mothers who would otherwise breastfeed weren’t derailed by misleading corporate ad campaigns. Toddler milk evoked its own set of concerns, I found. Its packages often carried promises of boosting brain and eye health. Extensive studies have not backed up those claims. The Infant Nutrition Council of America, a trade group, said toddler drinks “meet all legal, regulatory and nutritional science requirements.” The product can “potentially fill nutrition gaps,” it said. Health officials worried, too, that parents would confuse toddler milk, whose ingredients are less regulated and have drawn criticism from nutritionists, with infant formula. The labeling for both products looks nearly identical in many cases. Infant Formula Looks Nearly Identical to Toddler Milk on a Grocery Store’s Shelves in Bangkok Thailand's Milk Code restricts the advertisement of infant formula, but marketing of toddler milk is generally allowed. As documents from my public record requests rolled in, I began to see the U.S.’s impact. In Thailand, a 2016 letter the U.S. sent to Bangkok contained a flurry of criticisms and questions about its newly proposed formula marketing ban, including asking if it was “more trade restrictive than necessary.” A memo said the U.S. had also relayed concerns during a bilateral trade meeting with Thailand, as well as on the floor of the World Trade Organization, where such concerns carry an implicit legal threat. Eventually, Thailand backed down, weakening its proposed advertising ban and allowing formula marketing for children over the age of 1 to continue. My records and other research revealed a trend, showing that Thailand was just one of more than a dozen countries where the U.S. sought to undercut formula restrictions. The Office of the U.S. Trade Representative — the agency at the heart of many of the efforts — declined to comment on specific cases from our reporting, but a spokesperson acknowledged the office’s “formerly standard view that too often deemed legitimate regulatory initiatives as trade barriers.” With respect to infant formula, the agency’s statement said officials “work to uphold and advocate for policy and regulatory decisions that are based on science.” For me, it was a visit with a middle-class family in rural Thailand that brought this story home. Like me, Sumet Aunlamai and Jintana Suksiri had two boys a little more than three years apart in age. The parents had read the health claims about brain and eye development on the formula packaging and chose to spend the extra money to buy toddler milk for both. The boys craved the drink, which their parents gave them whenever they asked because they thought it was good for them. Both boys gained large amounts of weight. Gustun, the youngest, was nearly 70 pounds by the time he was 3 — the average weight for a 9-year-old. He had trouble moving. Medical tests offered no explanation. When the boys’ school switched them to cow’s milk, both lost the weight, and Jintana now wonders if toddler milk was the problem. Watching them play soccer in their driveway one afternoon last September, she told me both her sons, who are 6 and 9, have healthy weights now. Gustun darted about. “His movement is perfect,” she said.
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[l] at 4/9/24 11:00am
by Michael Korsh and Evan Robinson-Johnson, Pittsburgh Post-Gazette ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. Philips Respironics must hire an independent safety monitor, undergo regular facility inspections for five years and pay part of its revenue to the federal government under the terms of an agreement with prosecutors filed in federal court in Pennsylvania, capping one of the most catastrophic medical device recalls in decades. The company will also face a review of its testing on the millions of replacement machines that it sent to customers after the old ones were recalled in 2021. The consent decree with the Justice Department, filed in federal court last week, comes nearly three years after Philips acknowledged that an industrial foam fitted inside its widely used sleep apnea machines and ventilators to reduce noise could degrade and release toxic particles and fumes into the masks worn by patients. A ProPublica and Pittsburgh Post-Gazette investigation last year found the medical device giant had withheld thousands of complaints about the foam for more than a decade before warning its customers — including medically vulnerable patients such as infants and the elderly — about the dangers. The news organizations also revealed that a new, silicone-based foam that the company used in the replacement machines was also found to emit dangerous chemicals, including formaldehyde, a known carcinogen. Though Philips maintained that the new foam was safe, scientists involved in the testing raised alarms, and the Food and Drug Administration said more tests were needed before determining if the devices pose risks to patients. The consent decree requires Philips to carry out additional tests on the silicone foam if the independent safety monitor brought on by the company determines that prior testing was inadequate. The agreement also prohibits Philips from selling all sleep apnea devices and other respiratory machines in the United States. In January, Philips disclosed that it would no longer distribute the machines in the country as part of the negotiations with the Justice Department — a major shift for a company that long dominated the industry. Philips, which manufactures the devices at two plants outside Pittsburgh, is still able to export devices to other countries under the terms of the agreement. The company can also sell a select group of machines deemed “medically necessary” by the FDA inside the United States, including some ventilators, but must turn over up to 25% of the revenue to the government. The payments “are an equitable remedy and not punitive,” according to the agreement. In the consent decree, the Justice Department argued that the company had violated federal law by selling “adulterated” machines that did not comply with manufacturing requirements. The agreement was signed by Roy Jakobs, chief executive officer of Philips’ parent company, Royal Philips, headquartered in Amsterdam. The company did not admit fault. If Philips fails to abide by the agreement, the company could be forced to pay up to $20 million a year. Philips did not respond to questions about the consent decree, which still has to be approved by a judge. The company has previously said that tests on the original foam caused no “appreciable harm” to patients. And in an online video about the settlement, Chief Patient Safety and Quality Officer Steve C de Baca said the silicone-based foam in the replacement machines was also safe. Philips has “not identified any safety issues” with the replacement machines, he said, and “their use is not impacted” by the consent decree. On an informational page for customers, Philips said the settlement with U.S. authorities will help it “restore the business.” The company also said it has launched multiple safety reforms. The FDA said it would not comment until the settlement has been approved by the court. A Justice Department spokesperson declined to comment. Patient safety advocates say it will take years to assess the impact of the devices on patient health. At the time of the recall, both Philips and the FDA described potential health risks including respiratory tract illnesses, headaches, nausea, and toxic and carcinogenic effects. The FDA has said it received 561 reports of deaths reportedly associated with the degrading foam since 2021. The Post-Gazette and ProPublica previously identified reports that described nearly 2,000 cases of cancer, 600 liver and kidney illnesses, and 17,000 respiratory ailments. Though the company says the foam in the recalled devices does not lead to long-term harm, the material has repeatedly tested positive for genotoxicity, the ability of a chemical to cause cells to mutate, a process that can lead to cancer. Michael Twery, former director of sleep disorders research at the National Institutes of Health, said it could be difficult for Philips to earn back the trust of its customers. “If a manufacturer misleads [the] FDA, how do they reestablish integrity?” he said. Do You Work For the Federal Government? ProPublica Wants To Hear From You.
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[l] at 4/9/24 4:00am
by Becca Savransky, 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. The blue and orange leaflets that arrived in Idaho Falls mailboxes ahead of the school bond election in November 2022 looked like the usual fare that voters across the country get. Sent out by the school district, the mailers encouraged people in the eastern Idaho city to register to vote and listed bullet points highlighting what the bond would pay for. But the mailers, along with other materials the district distributed, would lead the county prosecutor’s office to fine the superintendent and the district’s spokesperson, accusing them of violating election law by using taxpayer money to advocate for the bond measure. According to the prosecutor, it was illegal for district officials to describe the schools as “overcrowded” and “aged” or to say that students “need modern, safe, and secure schools.” Such penalties were made possible by a 2018 state law originally pushed by the Idaho Freedom Foundation, a conservative lobbying group that has become a big player in Idaho Republican politics. The foundation has stoked hostility toward public education across the state, pushing book bans in school libraries and accusing districts of indoctrinating students with “woke” ideas like critical race theory. But unlike groups in other states, the Freedom Foundation has extended its reach by targeting school bond and levy elections, which have traditionally been local issues and are the main ways districts build and repair schools. The county prosecutor said these mailers that used the word “overcrowded” violated an election law that had been pushed by the Idaho Freedom Foundation. (Obtained by ProPublica and Idaho Statesman) Over the past year, the Idaho Statesman and ProPublica have reported on how many Idaho students learn in poor conditions, in part, because the state has one of the most restrictive policies in the nation: It is one of two states that require two-thirds of voters to approve a bond. Lawmakers recently passed legislation to invest $1.5 billion in new funding for school facilities and proposed a ballot initiative to lower the voting threshold during elections that typically have high turnout. But those measures wouldn’t change the 2018 election integrity law. School bond supporters said they agree taxpayer money shouldn’t be used to campaign for ballot measures, but they said the interpretation of the law has restricted the ability of school district officials to explain to their communities why the measures are needed, making passing bonds more difficult. Since the law was passed, the Freedom Foundation and those with similar positions have publicly accused at least four school districts of improperly advocating for bonds and levies. In the other cases, prosecutors have not moved forward with fines. Many states prohibit school districts from taking sides in bond elections to prevent public agencies from using taxpayer dollars to influence elections, and some laws include fines. A similar situation is playing out in Texas, where the attorney general sued several school districts over concerns that administrations were electioneering for candidates, measures or political parties. Generally, however, the laws allow school districts to educate voters. Idaho’s, for example, specifically permits providing information about the cost, purpose and property conditions in a “factually neutral manner.” But there is a lot of gray area between educating and advocating. Don Lifto, a former Minnesota superintendent who consults for school districts running tax elections, said it’s rare for school administrators to be fined. “I think this was a pretty strict and conservative interpretation of the statute,” he said. Under most state laws, he said, it would be hard to argue that saying students “need modern, safe, and secure schools” is a violation. A former transportation office was converted into classrooms because of overcrowding at Idaho Falls High School. (Sarah A. Miller/Idaho Statesman) A conservative anti-tax tilt has long defined Idaho, well before the Freedom Foundation launched in 2009. Since then, it has become the leading voice against public education in Idaho. Its lobbying arm, Idaho Freedom Action, was the top spender on Facebook ads before the last statewide primary election in 2022. “They monitor every single vote, and then they really go after people that don’t vote in alignment with them. And I can tell you just from being around the Legislature that a lot of legislators are afraid of them,” said Rod Gramer, the president and CEO of Idaho Business for Education, a group of business leaders focused on improving public schools. “They’ve made it very clear that they want to defund education and privatize education.” (The Statesman is a member of Idaho Business for Education.) Superintendents, school board trustees and community members in at least half a dozen school districts said in interviews that the Freedom Foundation’s arguments have spread across the state, with local advocates frequently parroting its talking points during board and bond elections. At the Capitol, the Freedom Foundation’s legislative index has become the authority for some lawmakers when deciding how to vote on bills. Unlike typical lobbying report cards, the group’s elaborate ranking system assigns positive or negative points to each bill, serving as a regular reminder for lawmakers that any step outside the group’s platform could cost them. “There’s some legislators who follow that religiously and just look at those notes and see how to vote,” said Sen. Rod Furniss, a Republican from Rigby in East Idaho. Late last year, the local Republican committees in Idaho Falls cited the group’s scores when it decided to investigate six Republican lawmakers because of their votes on certain bills, including education spending bills. Some lawmakers were censured, although they defended their voting records. Ron Nate, the president of the Idaho Freedom Foundation, declined to comment and did not answer written questions. The Freedom Foundation has called the index an “objective measure” of how legislators vote on the “principles of freedom and limited government.” “Score well, and your political profile is good; score low, and you have some explaining to do,” Nate wrote in 2023. The Freedom Foundation also said that the Idaho Falls case deserved “significantly worse consequences” but that the election integrity bill had been watered down by education groups before passing. They’ve made it very clear that they want to defund education and privatize education. —Rod Gramer, president of Idaho Business for Education The high bond threshold and low voter turnout can allow well-funded interest groups like the Freedom Foundation to have significant influence, said John Rumel, a University of Idaho law professor. “There’s a relatively small number of people that they need to convince to change the outcome in those elections,” he said. Even with a high turnout in a general election year, the 2022 bond measure in Idaho Falls failed despite getting 58% of the vote. The fallout for the district didn’t end with the election. A week before, a complaint was filed with the Bonneville County Sheriff’s office, and three days later, the Freedom Foundation called for the district to be “held accountable for electioneering.” In the end, the district said, the case cost $54,000 in legal fees. The Rise of the Freedom Foundation The Freedom Foundation’s mission is to “defeat Marxism and socialism” with principles of “limited government, free markets and self-reliance,” according to its website. As broad as that sounds, early on, the group set its sights on bond and levy elections, which intersected with two of the group’s focus areas, taxes and public schools. In 2010, its founder, Wayne Hoffman, wrote an editorial in the Statesman decrying the city of Boise for spending money to educate voters on a ballot measure and warned of what he thought could happen next. “What happens if Idaho’s 115 school districts decide that it is their job to help ‘educate’ Idahoans on the two-thirds majority needed to pass a school bond?” Hoffman wrote. “If government agencies across Idaho start to follow Boise’s lead, taxpayers — and freedom — don’t stand a chance.” In 2014, the Freedom Foundation argued on its website that school districts had too many chances to hold bond and levy elections and called for the Legislature to limit them to once every two years. Since then, the Legislature has eliminated two election dates school districts could use each year. Hoffman declined to comment and referred the Statesman to Nate. In 2017, the foundation pushed for a strict election integrity law. That version would have banned any mass communication or mailers leading up to the election, only allowing notices to be posted online or in the newspaper stating the election date, the bond’s impact on residents’ taxes and a “neutral and concise explanation” of what it would do. A public official who violated the law could be charged with a misdemeanor, fined up to $1,000 and sentenced to up to six months in jail. And the election result could be voided. In part, the legislation grew out of a state Supreme Court case that barred public entities from promoting bonds but provided few guidelines. Several key education groups sent a letter to Rep. Jason Monks, R-Meridian, who sponsored the legislation, with concerns that it would create a “heckler’s veto” to invalidate elections and have “a serious, chilling effect for anyone working in the public sphere to speak out on relative policy issues.” A compromise bill in 2018 still banned advocating but specifically allowed districts and local governments to provide information in a “factually neutral manner.” It removed criminal charges, and the penalties were lowered to a $250 fine, though they rose if someone knowingly violated the law. While some lawmakers raised concerns that the law’s language would inhibit school officials from knowing what they could say, education stakeholders thought the bill provided more clarity, and it passed in the Legislature overwhelmingly. In the years since, as the education culture wars have heated up, the Freedom Foundation has again positioned itself at the center. The group started publishing a map that promises to reveal “if your school district is indoctrinating students with leftist nonsense,” like having gay-straight alliance clubs or asking students their pronouns. The map also includes diversity, equity and inclusion personnel; test scores; and superintendent salaries. We were passive about the elections. And it came back to bite us. —Candy Turner, one of the organizers of the recall effort Last year, exhibiting the reach of the group’s influence, Branden Durst, a former Freedom Foundation analyst, was picked to be the superintendent of the West Bonner School District in North Idaho. Durst did not have the required experience in the classroom for the job, according to the State Board of Education. The trustees who hired him worried about a curriculum that included “social emotional learning.” The appointment and the board’s decision to toss the educational program led two trustees to be recalled. And after the public outcry, Durst submitted a letter that said he’d decided to step aside, and the board accepted it as his resignation. Durst declined to comment. Organizers of the recall effort said that low voter turnout and a lack of involvement in recent years had fostered an environment that allowed the Freedom Foundation to take hold. “We were passive about the elections,” said Candy Turner, one of the organizers. “And it came back to bite us.” The Fallout in Idaho Falls In May 2023, when Idaho Falls administrators learned the prosecutor was fining two district officials under the election law, the board felt the district had done nothing wrong. It had educated the public on the $250 million bond to build a new high school and two elementary schools, along with other repairs — and it had ultimately failed. Superintendent Karla LaOrange, who joined the district after the complaint was filed, said the district thought if it paid the fines, which came to $375 in total, it would signal to the community that it was admitting guilt. So the district, known as D91, spent the money to fight. Lisa Keller of D91 Taxpayers, a group that opposed the bond effort, said the group was not responsible for filing the complaint, though she and its members had concerns about the materials. She said community members worried about losing their homes due to the increase in taxes from the bond, which was the largest the district had ever run. She described the district’s plan for a new school as wanting to construct a Taj Mahal. First image: The door frame of a shed classroom has a gap that lets in cold air and moisture. Second image: Some students complain about gaps in bathroom stalls and a lack of privacy dividers between urinals at Idaho Falls High School. (Sarah A. Miller/Idaho Statesman) The formal allegation, however, came from Larry Lyon, a local resident who helped fund the political action committee behind D91 Taxpayers, with the help of Brian Stutzman, another nearby resident who has been involved in tax issues statewide, according to campaign finance records and the complaint obtained through a public records request. The Freedom Foundation had alleged the district violated the law in a website post days before the election, and D91 Taxpayers shared the post on its Facebook page. Lyon said in a message he filed the complaint because he was “sincerely concerned” the district “crossed the line from simply presenting facts to advocating for higher taxes with public funds.” He said he was confident the prosecutor’s office would “be fair to everyone involved.” Stutzman declined to comment. Bonneville County Prosecutor Randy Neal said he had no choice but to move forward with the complaint because he thought it was a clear violation. In an interview, he went through the district’s mailers to explain the problematic language. Instead of saying “overcrowded,” the district could have said the school was built for a certain number of students and that it now served more. “What I can’t do is say, ‘We need to replace the school because it’s overcrowded.’ That’s advocating for the bond,” he said. Neal said the district ignored its own legal advice, citing a memo from Idaho law firm Hawley Troxell that warned the “most questionable actions” happen when districts explain the “‘need’ for the new facilities” and said “crowding issues or age of facilities” may be better for others to talk about. Hawley Troxell and the school district didn’t respond to requests for comment about the memo. Erin Bingham, one of the leading supporters of the bond effort, said she felt like Neal was associated with D91 Taxpayers and the Freedom Foundation. She called the complaint “frivolous” and a “waste of time and taxpayers’ money.” “I feel like it creates a precedent that if they don’t fight it,” these groups will continue to file complaints against the school district during bond elections, she said. Neal denied taking action for political reasons or being affiliated with any advocacy groups. “I have no dog in the fight,” he said. “I don’t have children. This isn’t the school district I live in. I don’t know any of these people.” The district’s decision to fight the fines bred even more distrust with D91 Taxpayers, which said the district was wasting money on legal bills. “What a breach of public trust, to fight the county prosecutor with my money, paying their lawyers with my money,” Keller told the Statesman and ProPublica. “This is ridiculous. It’s ridiculous.” The district eventually settled the complaint. The total fine was lowered to $250, and the case was dismissed. What I can’t do is say, ‘We need to replace the school because it’s overcrowded.’ That’s advocating for the bond. —Randy Neal, Bonneville County prosecutor The prosecutor’s action, though, has had a chilling effect across the community and state, education stakeholders say. “It’s panic I’ve heard for sure,” said Quinn Perry of the Idaho School Boards Association. ISBA, along with two other education groups, wrote an opinion piece last year noting that the Legislature has been making it increasingly difficult for school districts and local governments to run measures that raise taxes. If simply communicating a need is interpreted as advocacy, “we are not sure that school districts can sustain their operations or ever build a new school,” the groups wrote. “Perhaps that is the point.” Idaho Falls board chair Hillary Radcliffe said district officials may feel they can’t speak as “frankly” about what’s going on because it could be construed as advocacy. “They have to be very, very limited in what they’re saying,” she said. “It makes it hard sometimes for our community to fully grasp some of the issues we have going on in our schools.” Republican Sen. Dave Lent, who represents Idaho Falls and chairs the Senate Education Committee, said Neal took the law too far. “It’s an aggressive interpretation by our prosecuting attorney,” said Lent, a former Idaho Falls school board member. “You have to educate people as to the why. And if you’re not allowed to tell them the why, your hands are tied.” The district has been grappling with how to fix its schools, with narrowing options and intense opposition and distrust from community members and groups like the Freedom Foundation. The hallways of Idaho Falls schools are still overcrowded, and administrators worry about projected growth. The bathrooms regularly have to be closed at the district’s Skyline High School because the plumbing is failing, administrators said. Students with disabilities are crammed into small classrooms with doorways that barely fit wheelchairs. Idaho Falls High School was built for 900 students but now serves about 1,250, administrators said. Between periods, hundreds of students rush out of their classrooms, walk down narrow staircases and push to get to their classes on time. Students eat lunch on the floor because the cafeteria accommodates only about 200 students, fewer than even the number of students who qualify for free and reduced lunch. Classrooms flood, as does the athletic field. After heavy rains last spring, Bingham said, “the kids were skipping rocks across it.” The athletic field at Idaho Falls High School flooded after heavy rains in spring 2023. (Courtesy of Brooke Bushman)
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[l] at 4/9/24 4:00am
by Becca Savransky, 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. The blue and orange leaflets that arrived in Idaho Falls mailboxes ahead of the school bond election in November 2022 looked like the usual fare that voters across the country get. Sent out by the school district, the mailers encouraged people in the eastern Idaho city to register to vote and listed bullet points highlighting what the bond would pay for. But the mailers, along with other materials the district distributed, would lead the county prosecutor’s office to fine the superintendent and the district’s spokesperson, accusing them of violating election law by using taxpayer money to advocate for the bond measure. According to the prosecutor, it was illegal for district officials to describe the schools as “overcrowded” and “aged” or to say that students “need modern, safe, and secure schools.” Such penalties were made possible by a 2018 state law originally pushed by the Idaho Freedom Foundation, a conservative lobbying group that has become a big player in Idaho Republican politics. The foundation has stoked hostility toward public education across the state, pushing book bans in school libraries and accusing districts of indoctrinating students with “woke” ideas like critical race theory. But unlike groups in other states, the Freedom Foundation has extended its reach by targeting school bond and levy elections, which have traditionally been local issues and are the main ways districts build and repair schools. The county prosecutor said these mailers that used the word “overcrowded” violated an election law that had been pushed by the Idaho Freedom Foundation. (Obtained by ProPublica and Idaho Statesman) Over the past year, the Idaho Statesman and ProPublica have reported on how many Idaho students learn in poor conditions, in part, because the state has one of the most restrictive policies in the nation: It is one of two states that require two-thirds of voters to approve a bond. Lawmakers recently passed legislation to invest $1.5 billion in new funding for school facilities and proposed a ballot initiative to lower the voting threshold during elections that typically have high turnout. But those measures wouldn’t change the 2018 election integrity law. School bond supporters said they agree taxpayer money shouldn’t be used to campaign for ballot measures, but they said the interpretation of the law has restricted the ability of school district officials to explain to their communities why the measures are needed, making passing bonds more difficult. Since the law was passed, the Freedom Foundation and those with similar positions have publicly accused at least four school districts of improperly advocating for bonds and levies. In the other cases, prosecutors have not moved forward with fines. Many states prohibit school districts from taking sides in bond elections to prevent public agencies from using taxpayer dollars to influence elections, and some laws include fines. A similar situation is playing out in Texas, where the attorney general sued several school districts over concerns that administrations were electioneering for candidates, measures or political parties. Generally, however, the laws allow school districts to educate voters. Idaho’s, for example, specifically permits providing information about the cost, purpose and property conditions in a “factually neutral manner.” But there is a lot of gray area between educating and advocating. Don Lifto, a former Minnesota superintendent who consults for school districts running tax elections, said it’s rare for school administrators to be fined. “I think this was a pretty strict and conservative interpretation of the statute,” he said. Under most state laws, he said, it would be hard to argue that saying students “need modern, safe, and secure schools” is a violation. A former transportation office was converted into classrooms because of overcrowding at Idaho Falls High School. (Sarah A. Miller/Idaho Statesman) A conservative anti-tax tilt has long defined Idaho, well before the Freedom Foundation launched in 2009. Since then, it has become the leading voice against public education in Idaho. Its lobbying arm, Idaho Freedom Action, was the top spender on Facebook ads before the last statewide primary election in 2022. “They monitor every single vote, and then they really go after people that don’t vote in alignment with them. And I can tell you just from being around the Legislature that a lot of legislators are afraid of them,” said Rod Gramer, the president and CEO of Idaho Business for Education, a group of business leaders focused on improving public schools. “They’ve made it very clear that they want to defund education and privatize education.” (The Statesman is a member of Idaho Business for Education.) Superintendents, school board trustees and community members in at least half a dozen school districts said in interviews that the Freedom Foundation’s arguments have spread across the state, with local advocates frequently parroting its talking points during board and bond elections. At the Capitol, the Freedom Foundation’s legislative index has become the authority for some lawmakers when deciding how to vote on bills. Unlike typical lobbying report cards, the group’s elaborate ranking system assigns positive or negative points to each bill, serving as a regular reminder for lawmakers that any step outside the group’s platform could cost them. “There’s some legislators who follow that religiously and just look at those notes and see how to vote,” said Sen. Rod Furniss, a Republican from Rigby in East Idaho. Late last year, the local Republican committees in Idaho Falls cited the group’s scores when it decided to investigate six Republican lawmakers because of their votes on certain bills, including education spending bills. Some lawmakers were censured, although they defended their voting records. Ron Nate, the president of the Idaho Freedom Foundation, declined to comment and did not answer written questions. The Freedom Foundation has called the index an “objective measure” of how legislators vote on the “principles of freedom and limited government.” “Score well, and your political profile is good; score low, and you have some explaining to do,” Nate wrote in 2023. It also said that the Idaho Falls case deserved “significantly worse consequences” but that the election integrity bill had been watered down by education groups before passing. They’ve made it very clear that they want to defund education and privatize education. —Rod Gramer, president of Idaho Business for Education The high bond threshold and low voter turnout can allow well-funded interest groups like the Freedom Foundation to have significant influence, said John Rumel, a University of Idaho law professor. “There’s a relatively small number of people that they need to convince to change the outcome in those elections,” he said. Even with a high turnout in a general election year, the 2022 bond measure in Idaho Falls failed despite getting 58% of the vote. The fallout for the district didn’t end with the election. A week before, a complaint was filed with the Bonneville County Sheriff’s office, and three days later, the Freedom Foundation called for the district to be “held accountable for electioneering.” In the end, the district said, the case cost $54,000 in legal fees. The Rise of the Freedom Foundation The Freedom Foundation’s mission is to “defeat Marxism and socialism” with principles of “limited government, free markets and self-reliance,” according to its website. As broad as that sounds, early on, the group set its sights on bond and levy elections, which intersected with two of the group’s focus areas, taxes and public schools. In 2010, its founder, Wayne Hoffman, wrote an editorial in the Statesman decrying the city of Boise for spending money to educate voters on a ballot measure and warned of what he thought could happen next. “What happens if Idaho’s 115 school districts decide that it is their job to help ‘educate’ Idahoans on the two-thirds majority needed to pass a school bond?” Hoffman wrote. “If government agencies across Idaho start to follow Boise’s lead, taxpayers — and freedom — don’t stand a chance.” In 2014, the Freedom Foundation argued on its website that school districts had too many chances to hold bond and levy elections and called for the Legislature to limit them to once every two years. Since then, the Legislature has eliminated two election dates school districts could use each year. Hoffman declined to comment and referred the Statesman to Nate. In 2017, the foundation pushed for a strict election integrity law. That version would have banned any mass communication or mailers leading up to the election, only allowing notices to be posted online or in the newspaper stating the election date, the bond’s impact on residents’ taxes and a “neutral and concise explanation” of what it would do. A public official who violated the law could be charged with a misdemeanor, fined up to $1,000 and sentenced to up to six months in jail. And the election result could be voided. In part, the legislation grew out of a state Supreme Court case that barred public entities from promoting bonds but provided few guidelines. Several key education groups sent a letter to Rep. Jason Monks, R-Meridian, who sponsored the legislation, with concerns that it would create a “heckler’s veto” to invalidate elections and have “a serious, chilling effect for anyone working in the public sphere to speak out on relative policy issues.” A compromise bill in 2018 still banned advocating but specifically allowed districts and local governments to provide information in a “factually neutral manner.” It removed criminal charges, and the penalties were lowered to a $250 fine, though they rose if someone knowingly violated the law. While some lawmakers raised concerns that the law’s language would inhibit school officials from knowing what they could say, education stakeholders thought the bill provided more clarity, and it passed in the Legislature overwhelmingly. In the years since, as the education culture wars have heated up, the Freedom Foundation has again positioned itself at the center. The group started publishing a map that promises to reveal “if your school district is indoctrinating students with leftist nonsense,” like having gay-straight alliance clubs or asking students their pronouns. The map also includes diversity, equity and inclusion personnel; test scores; and superintendent salaries. We were passive about the elections. And it came back to bite us. —Candy Turner, one of the organizers of the recall effort Last year, exhibiting the reach of the group’s influence, Branden Durst, a former Freedom Foundation analyst, was picked to be the superintendent of the West Bonner School District in North Idaho. Durst did not have the required experience in the classroom for the job, according to the State Board of Education. The trustees who hired him worried about a curriculum that included “social emotional learning.” The appointment and the board’s decision to toss the educational program led two trustees to be recalled. And after the public outcry, Durst submitted a letter that said he’d decided to step aside, and the board accepted it as his resignation. Durst declined to comment. Organizers of the recall effort said that low voter turnout and a lack of involvement in recent years had fostered an environment that allowed the Freedom Foundation to take hold. “We were passive about the elections,” said Candy Turner, one of the organizers. “And it came back to bite us.” The Fallout in Idaho Falls In May 2023, when Idaho Falls administrators learned the prosecutor was fining two district officials under the election law, the board felt the district had done nothing wrong. It had educated the public on the $250 million bond to build a new high school and two elementary schools, along with other repairs — and it had ultimately failed. Superintendent Karla LaOrange, who joined the district after the complaint was filed, said the district thought if it paid the fines, which came to $375 in total, it would signal to the community that it was admitting guilt. So the district, known as D91, spent the money to fight. Lisa Keller of D91 Taxpayers, a group that opposed the bond effort, said the group was not responsible for filing the complaint, though she and its members had concerns about the materials. She said community members worried about losing their homes due to the increase in taxes from the bond, which was the largest the district had ever run. She described the district’s plan for a new school as wanting to construct a Taj Mahal. First image: The door frame of a shed classroom has a gap that lets in cold air and moisture. Second image: Some students complain about gaps in bathroom stalls and a lack of privacy dividers between urinals at Idaho Falls High School. (Sarah A. Miller/Idaho Statesman) The formal allegation, however, came from Larry Lyon, a local resident who helped fund the political action committee behind D91 Taxpayers, with the help of Brian Stutzman, another nearby resident who has been involved in tax issues statewide, according to campaign finance records and the complaint obtained through a public records request. The Freedom Foundation had alleged the district violated the law in a website post days before the election, and D91 Taxpayers shared the post on its Facebook page. Lyon said in a message he filed the complaint because he was “sincerely concerned” the district “crossed the line from simply presenting facts to advocating for higher taxes with public funds.” He said he was confident the prosecutor’s office would “be fair to everyone involved.” Stutzman declined to comment. Bonneville County Prosecutor Randy Neal said he had no choice but to move forward with the complaint because he thought it was a clear violation. In an interview, he went through the district’s mailers to explain the problematic language. Instead of saying “overcrowded,” the district could have said the school was built for a certain number of students and that it now served more. “What I can’t do is say, ‘We need to replace the school because it’s overcrowded.’ That’s advocating for the bond,” he said. Neal said the district ignored its own legal advice, citing a memo from Idaho law firm Hawley Troxell that warned the “most questionable actions” happen when districts explain the “‘need’ for the new facilities” and said “crowding issues or age of facilities” may be better for others to talk about. Hawley Troxell and the school district didn’t respond to requests for comment about the memo. Erin Bingham, one of the leading supporters of the bond effort, said she felt like Neal was associated with D91 Taxpayers and the Freedom Foundation. She called the complaint “frivolous” and a “waste of time and taxpayers’ money.” “I feel like it creates a precedent that if they don’t fight it,” these groups will continue to file complaints against the school district during bond elections, she said. Neal denied taking action for political reasons or being affiliated with any advocacy groups. “I have no dog in the fight,” he said. “I don’t have children. This isn’t the school district I live in. I don’t know any of these people.” The district’s decision to fight the fines bred even more distrust with D91 Taxpayers, which said the district was wasting money on legal bills. “What a breach of public trust, to fight the county prosecutor with my money, paying their lawyers with my money,” Keller told the Statesman and ProPublica. “This is ridiculous. It’s ridiculous.” The district eventually settled the complaint. The total fine was lowered to $250, and the case was dismissed. What I can’t do is say, ‘We need to replace the school because it’s overcrowded.’ That’s advocating for the bond. —Randy Neal, Bonneville County prosecutor The prosecutor’s action, though, has had a chilling effect across the community and state, education stakeholders say. “It’s panic I’ve heard for sure,” said Quinn Perry of the Idaho School Boards Association. ISBA, along with two other education groups, wrote an opinion piece last year noting that the Legislature has been making it increasingly difficult for school districts and local governments to run measures that raise taxes. If simply communicating a need is interpreted as advocacy, “we are not sure that school districts can sustain their operations or ever build a new school,” the groups wrote. “Perhaps that is the point.” Idaho Falls board chair Hillary Radcliffe said district officials may feel they can’t speak as “frankly” about what’s going on because it could be construed as advocacy. “They have to be very, very limited in what they’re saying,” she said. “It makes it hard sometimes for our community to fully grasp some of the issues we have going on in our schools.” Republican Sen. Dave Lent, who represents Idaho Falls and chairs the Senate Education Committee, said Neal took the law too far. “It’s an aggressive interpretation by our prosecuting attorney,” said Lent, a former Idaho Falls school board member. “You have to educate people as to the why. And if you’re not allowed to tell them the why, your hands are tied.” The district has been grappling with how to fix its schools, with narrowing options and intense opposition and distrust from community members and groups like the Freedom Foundation. The hallways of Idaho Falls schools are still overcrowded, and administrators worry about projected growth. The bathrooms regularly have to be closed at the district’s Skyline High School because the plumbing is failing, administrators said. Students with disabilities are crammed into small classrooms with doorways that barely fit wheelchairs. Idaho Falls High School was built for 900 students but now serves about 1,250, administrators said. Between periods, hundreds of students rush out of their classrooms, walk down narrow staircases and push to get to their classes on time. Students eat lunch on the floor because the cafeteria accommodates only about 200 students, fewer than even the number of students who qualify for free and reduced lunch. Classrooms flood, as does the athletic field. After heavy rains last spring, Bingham said, “the kids were skipping rocks across it.” The athletic field at Idaho Falls High School flooded after heavy rains in spring 2023. (Courtesy of Brooke Bushman)
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[l] at 4/8/24 3:00am
by Michael Squires ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. During the 14 years Leah Moses fought her ex-husband for custody of their two children, she repeatedly warned the court that he was abusive. It was a tough sell: Moses, a midwife, sometimes acted as her own attorney; her ex-husband, Parth Gandhi, was a psychologist who hired experts to persuade the Utah court that Moses’ allegations were a ruse to estrange him from the children. Getting nowhere, Moses turned to the Utah Legislature. She believed things might change if judges were required to consider evidence of family violence in their custody decisions, and if expert witnesses had actually dealt firsthand with abuse victims. The Legislature adjourned in 2023 without acting on a proposal to reform how the state handles custody cases. Months later, Moses’ ex-husband shot and killed their 16-year-old son Om at Gandhi’s Salt Lake City clinic, then turned the weapon on himself. At the time, Gandhi had full custody of Om. Rather than retreat into grief, Moses returned to the Capitol to again call for change. This time, lawmakers passed legislation, signed into law last month by Gov. Spencer Cox, codifying parts of the federal Violence Against Women Act. It mandates, among other things, that judges deciding custody first consider risks to the child’s safety. (The law previously only said they could consider evidence of violence.) “I wish it had been done for me, that these protections had been in place a year earlier,” Moses told ProPublica. “My personal hope is that no more children die as a result of being in custody cases — that decision makers recognize violence much sooner and give kids a chance.” The legislation follows ProPublica’s reporting on Utah courts’ handling of custody cases involving allegations of violence. That reporting showed judges had in two instances ordered children to participate in so-called reunification therapy with fathers who had been accused of abusing them. Both fathers have denied the abuse allegations and responded by accusing their ex-wives of parental alienation, a disputed theory in which one parent is accused of brainwashing a child to turn them against the other parent. In one case, a boy who accused his father of sexually abusing him barricaded himself, along with his sister, inside a bedroom in their mother’s home to avoid going to a Texas reunification program with their dad. In another, two brothers were ordered to attend the same Texas program with their dad, whom they said had abused them. When they refused to take part in the therapy, their bedding, food and clothing were confiscated, according to court testimony, and they were prohibited by court order from contacting their mother for months. Under the new Utah law, courts can only require treatments that have been shown to be effective, and it prohibits therapies that separate children from a parent to whom they are bonded (provided the parent does not pose a threat to their safety). “Any type of reunification therapy has to have proof of safety and effectiveness,” said state Rep. Paul A. Cutler, a Republican and co-sponsor of the legislation, known as HB 272. “No more sending kids out of state to some unknown camp run by uncredentialed people — can’t do that anymore — only proven therapeutic treatments by professionals.” State Sen. Michael K. McKell, the bill’s other co-sponsor and a practicing attorney, said in his experience the same attorneys often work with the same experts to counter abuse allegations by citing parental alienation. “I can predict who the custody evaluator will be based on who the attorney is, and I hope that stops,” McKell, a Republican, said. “Courts are going to have to be more careful about who they allow to opine on custody.” Proponents of the bill said most resistance to it came from divorce attorneys. The law requires expert witnesses to be qualified and credentialed and to have experience working with abuse victims. Utah courts will also be required to train judges and other court personnel to better recognize domestic violence and address child safety in custody cases. “Courts are doing a poor job in these cases,” said Danielle Pollack, policy manager at the National Family Violence Law Center at George Washington University’s law school. Pollack, who provided technical assistance to proponents of the Utah legislation, said the training will help judges recognize experts on family violence. Utah is the second state, after Colorado, to pass legislation that adopts nearly all provisions of the federal Keeping Children Safe From Family Violence Act, or Kayden’s Law, Pollack said. (Other states, including California, have enacted portions of the law.) “What this does is it puts child safety as the first priority of custody,” Cutler said of Utah’s law. “It prioritizes the child’s safety over the parents’ rights to manipulate their children for their own use.” Advocates said they were heartened that now a red state, Utah, and a blue state, Colorado, have embraced the reforms. Pollack attributed the success in Utah to ProPublica and other news organizations drawing attention to the problem, and to parents like Moses who shared their personal struggles to draw attention to family violence and protect their children. After the murder of her son, Moses said she felt a moral obligation to continue pushing for the law. “In endless hearings in my case there was every indication of violence,” Moses said. “The most disappointing thing is that I could not get the system to pay attention to the violence against me and my family.” Hannah Dreyfus contributed reporting.
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[l] at 4/5/24 1:30pm
by Robert Faturechi, Justin Elliott 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. Former President Donald Trump scored a victory last week when a New York court slashed the amount he had to put up while appealing his civil fraud case to $175 million. His lawyers had told the appellate court it was a “practical impossibility” to get a bond for the full amount of the lower court’s judgment, $464 million. All of the 30 or so firms Trump had approached balked, either refusing to take the risk or not wanting to accept real estate as collateral, they said. That made raising the full amount “an impossible bond requirement.” But before the judges ruled, the impossible became possible: A billionaire lender approached Trump about providing a bond for the full amount. The lawyers never filed paperwork alerting the appeals court. That failure may have violated ethics rules, legal experts say. In an interview with ProPublica, billionaire California financier Don Hankey said he reached out to Trump’s camp several days before the bond was lowered, expressing willingness to offer the full amount and to use real estate as collateral. “I saw that they were rejected by everyone and I said, ‘Gee, that doesn’t seem like a difficult bond to post,’” Hankey said. As negotiations between Hankey and Trump’s representatives were underway, the appellate court ruled in Trump’s favor, lowering the bond to $175 million. The court did not give an explanation for its ruling. Hankey ended up giving Trump a bond for the lowered amount. It’s unclear if Trump lawyer Alina Habba or the rest of his legal team were made aware that Hankey reached out about a deal for the full amount. Trump’s legal team did not respond to requests for comment. After ProPublica reached out to Trump’s representatives, Hankey called back and revised his account. He said he had heard “indirectly” about ProPublica’s subsequent inquiries to Trump’s lawyers. In the second conversation, he said that accepting the real estate as collateral would have been complicated and that he wouldn’t have been able to “commit” to providing a bond in the full amount “until I evaluate the assets.” Legal ethics experts said it would be troubling if Trump’s lawyers knew about Hankey’s approach and failed to notify the court. New York state’s rules of professional conduct for lawyers forbid attorneys from knowingly making false statements to a court. At the time Trump’s lawyers told the court that meeting the bond would be impossible, Hankey said he had not yet reached out to the Trump team. But the rules of conduct also dictate that lawyers must “correct a false statement of material fact or law previously made” to the court. “If that deal was on the table for the taking, the representation from the earlier time would be untrue, and the lawyer would have an obligation to correct,” said Stephen Gillers, a legal ethics professor at New York University Law School. In the rules of conduct for lawyers, the failure to update an important piece of evidence would fall under what’s referred to as the “duty of candor to a tribunal,” said Ellen Yaroshefsky, a professor of legal ethics at Hofstra Law. “Any judge is going to be furious that this wasn’t corrected,” she said. Scott Cummings, a legal ethics professor at UCLA’s law school, agreed that there was a potential ethical failure but said Trump’s lawyers could argue that they were not obligated to alert the court. “A very narrow reading of this rule would be there is no obligation to report because it wasn’t a false statement at the time,” Cummings said. The need for the bond arose from a case brought against Trump by the New York attorney general, who accused him of fraudulently inflating his net worth to get favorable loans and other benefits. A judge agreed and ordered Trump and the other defendants to pay $464 million. Trump had a month to come up with the sum or risked having his properties seized. When a defendant loses a civil case in New York, the creditor — in this case the attorney general — can immediately go after the defendant’s assets to collect the judgment. The defendant can protect his assets while pursuing an appeal by posting a bond. Typically obtained from an insurance company for a fee, the bond is essentially a promise that the company will guarantee payment of the judgment if the appeal fails. In his first interview with ProPublica, Hankey said that when he heard Trump was having trouble getting a bond, he reached out to Trump’s camp, several days before the bond was reduced, with an offer to help. Hankey, who took a break from a game of bocce to speak to ProPublica, is rated by Forbes as one of the 400 wealthiest people in the world with an estimated net worth of more than $7 billion. He made much of his fortune with high-interest car loans to risky borrowers, and he is chairman of a Los Angeles-based network of companies across a range of industries, including real estate, insurance and finance. He has said he supports Trump politically but would have wanted to make the deal no matter his politics. Hankey told ProPublica that during the talks he came to the conclusion that Trump’s “got the liquidity” and was confused why others would have rejected him, speculating that some may have wanted to avoid political backlash: “If you’re a public company, maybe you don’t want to offend 45% of the population.” Hankey said he informed Trump’s camp that he was willing to work with them, and “they said they had the collateral.” The two sides went over the assets that had to be pledged, and it was up to Trump “if they wanted to do it.” (In his second call, Hankey said making a deal would have been “difficult.”) But, he said, the deal for the larger amount was dropped during a large Zoom call between the two sides, when Trump’s camp got a call informing them that the bond was reduced. “They thanked us for trying to help: ‘Maybe next year, we’ll try to do business again,’” Hankey recalled them saying. But several days later, Hankey said, they called back, hoping to make a deal for the reduced bond, and Hankey agreed. The bond saga is not over. In a brief court filing on Thursday, the New York attorney general asked Trump or Hankey’s company to show that the company has the financial means to fulfill the $175 million bond. Do you have any information about this case that we should know? Robert Faturechi can be reached by email at robert.faturechi@propublica.org and by Signal or WhatsApp at 213-271-7217. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.
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[l] at 4/5/24 3:00am
by Robin Fields ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. An unusual public dispute has erupted among leading maternal health experts over whether the striking rise of U.S. maternal mortality rates over the past two decades was the real deal — or a statistical mirage. The challenge to what has been a long-held view among public health officials came from researchers behind a new study published in the American Journal of Obstetrics & Gynecology. The study concluded that maternal death rates put out by the Centers for Disease Control and Prevention have been substantially inflated by misclassified data. Using an alternate way of counting deaths related to pregnancy and childbirth, the study found, U.S. maternal mortality rates would be far lower than have been reported. And they’d be stable, not rising. The pushback followed soon after. The CDC said it disagreed with the study’s findings and criticized the researchers’ methodology as a recipe for undercounting maternal deaths. The American College of Obstetricians and Gynecologists criticized the study for painting an “incomplete picture.” “To reduce the U.S. maternal mortality crisis to an ‘overestimation’ is irresponsible and minimizes the many lives lost and the families that have been deeply affected,” Dr. Christopher Zahn, the group’s interim CEO, said in a written statement. ProPublica has been writing since 2017 about what maternal health experts condemned as unacceptably high numbers of deaths and near-deaths related to pregnancy and childbirth. Our series, “Lost Mothers,” examined how most maternal deaths are preventable and how obdurate racial disparities cause Black mothers to die at far higher rates. The disproportionate toll on Black women is one point on which the CDC and the new study agree. We also wrote about how flaws in data collection had made it challenging to understand how U.S. maternal mortality rates were changing, as well as how American outcomes compared with those of other wealthy countries. The landscape has changed in critical ways since then. More than 20 states have banned or restricted access to abortion since the U.S. Supreme Court overturned Roe v. Wade in 2022; studies have shown that maternal mortality rates are higher in these states. Thus it seems all the more urgent to revisit some key questions about this marker of reproductive health. Why is it so hard to pin down how many American women die as a consequence of pregnancy and childbirth? Health officials rely on information from death certificates to track maternal deaths. These crucial documents are filled in by doctors, turned in to state and local vital statistics offices, then funneled to epidemiologists at the CDC. The cause-of-death information in these records has always been prone to error and often is incomplete. In the case of maternal deaths, death certificates often aren’t filled out by OB-GYNs or anyone trained to recognize a connection to pregnancy or childbirth. The simplest cases involve deaths that result directly from pregnancy, labor or postpartum complications. But pregnancy also can interact with a mother-to-be’s preexisting health conditions or cause new ones, figuring into fatalities in ways that death certificates sometimes don’t reflect. For many years, research showed substantial numbers of maternal deaths were being missed — possibly as many as half. To fix this, starting in 2003, states began phasing in a revised death certificate that added a checkbox question asking whether the person who died, if female, was pregnant at the time or within a year of death. After states added the pregnancy checkbox, they often saw their rates of maternal deaths double, experts told ProPublica. This eliminated the undercount, but it also brought so-called false positives: deaths counted as related to pregnancy or childbirth that really weren’t. This was particularly a problem among women over 40. The CDC highlighted these issues in several reports. In one, it found that 147 decedents over 85 had been identified as pregnant when they died or within the previous year, according to 2013 checkbox data. In another, it analyzed a sample of 2014 and 2016 maternal deaths identified via the checkbox, comparing their death certificates to hospital records; more than half the deaths were potentially false positives, the agency concluded. In 2018, the agency made changes to improve data quality, among them that the pregnancy checkbox wouldn’t be used for women who died at ages 45 and older. Last year, the CDC took another step designed to wring out errors, requiring states to start verifying checkbox information on a subset of records. The new study’s authors — a dozen researchers based mostly in Canada — say the tweaks haven’t gone far enough. They propose an alternative way of counting in which deaths are classified as maternal only if at least one cause of death listed on the death certificate specifically mentions pregnancy. Classifying deaths as maternal without this kind of evidence, based solely on the pregnancy checkbox, undermines “the very purpose of surveillance,” lead author Dr. K.S. Joseph, a physician and epidemiologist at the University of British Columbia, said in an interview. “If we are to use this cause-of-death information to institute clinical and public health programs aimed at preventing maternal death, we need proper cause of death information,” he said. He wasn’t surprised that the study kicked off a firestorm: “The dominant narrative is that the U.S. has a maternal mortality crisis,” he wrote in a follow-up email. “So it’s not unexpected that a study such as ours is met with skepticism, at least initially.” He said the researchers were confident that their findings were accurate and that the narrative would change. The CDC, however, challenged the study’s approach, arguing it would miss many maternal deaths. One example: a mother-to-be who dies from hypertension. The checkbox should catch this, ensuring the death would be counted as maternal. Using the study’s method, the death might be missed if whoever fills out the death certificate gives the cause as hypertension without adding the connection to pregnancy. “Capturing these otherwise unrecorded maternal deaths is critical to understanding the scope of maternal mortality in the United States and taking effective public health action to prevent these deaths,” the CDC said in an emailed statement. Joseph agreed his study’s method likely does underestimate maternal death rates. “But it is the best available method to answer the question of whether rates have increased over the last 20 years,” he said. So are U.S. maternal mortality rates rising or not? The CDC’s National Center for Health Statistics didn’t publish an official U.S. maternal mortality rate for more than a decade — from 2007 to 2018 — as states transitioned to using death certificates including the pregnancy checkbox. The CDC’s rate for 2018 — 17.4 deaths per 100,000 live births — was considerably higher than the 12.7 rate for 2007, an increase the agency attributed largely to changes in data collection. But it’s less clear how much of that was driven by errors versus accurately counting maternal deaths that previously had been missed. The agency’s rates edged up again in 2019 and 2020, then leaped to almost 33 deaths per 100,000 live births in 2021. Some of this reflected the pandemic: A quarter of maternal deaths in 2020 and 2021 were associated with COVID-19, a report by the Government Accountability Office found. The new study compares two four-year periods: 1999 to 2002 (before the checkbox) and 2018 to 2021 (after). Using the CDC’s way of counting, the maternal mortality rate more than doubled over that time frame, from about 9.7 deaths per 100,000 live births in the first period to 23.6 deaths per 100,000 live births in the second one, the study finds. Using the researchers’ formula, by contrast, maternal deaths stayed essentially flat from the first period to the second, going from 10.2 deaths per 100,000 live births to 10.4 deaths per live births. Some of the authors’ findings echo those of other researchers. For example, they found that deaths from direct obstetrical causes, such as preeclampsia and postpartum hemorrhage, decreased over time. There have been other studies that reached similar conclusions, including one showing the rate of pregnant women who died delivering children in the hospital dropped by more than half from 2008 through 2021. Still, the CDC’s mortality data experts say they have the fundamental trend line right, particularly since the checkbox-related changes in 2018. “We feel fairly confident that there has been an increase [in maternal mortality], particularly during the pandemic,” Robert Anderson, chief of mortality statistics for the CDC, told CNN. “We went from underestimating to overestimating, so we had to make that correction. But I feel fairly confident that the increases since 2018 are real.” What about the data on racial disparities — does this hold up? Whatever method you use to calculate maternal death rates, Black women still have a substantially higher risk of dying as a result of pregnancy or childbirth. Data from the CDC shows that for each year from 2018 to 2021, Black women have maternal mortality rates double that of women overall and 2.5 to 3 times higher than white women. The new study, using its alternative method for counting pregnancy- and childbirth-related deaths, finds similar racial disparities over that period. How do U.S. maternal mortality rates compare with those of other wealthy countries? Much of the concern about U.S. maternal death rates has been driven by its outlier status among industrialized countries and that its rates have continued to worsen as rates in many wealthy nations improved. The 2021 rate reported by the CDC was several times those of countries like Australia and Switzerland and topped those of many middle-income countries. By the new study’s yardstick, U.S. maternal mortality rates look considerably better — similar to those of Canada and the United Kingdom though still higher than those of many other wealthy countries. To allow rates to be compared internationally, countries around the world, including the U.S., use the World Health Organization’s definition of maternal mortality. But they often have very different systems for tracking deaths and checking the accuracy, consistency and comprehensiveness of vital statistics data. The U.K. is considered the gold standard when it comes to maternal deaths, conducting in-depth investigations into every single one. While the new study says the CDC has been overestimating U.S. maternal mortality rates, some health experts have argued there are pregnancy-related deaths that aren’t captured by the agency’s data but should be. The maternal mortality rate excludes deaths by suicide or caused by “accidental or incidental” causes, including drug overdoses. It also doesn’t include maternal deaths that occur more than 42 days after giving birth. In the U.S., about 30% of pregnancy-related deaths are happening from 43 days to 365 days after delivery, a CDC report said. “These are all issues that clinicians and public health people need to debate and to address,” Joseph said. “But we haven’t done it as yet.”
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[l] at 4/4/24 3:00am
by Marilyn W. Thompson ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. With the Republicans holding just a two-vote majority in the House of Representatives, voters will go to the polls in November in at least two congressional districts that have been challenged as discriminatory against people of color. After months of delays and appeals, courts have decided in the last two weeks that the maps in South Carolina and Florida will stand, giving Republican incumbents an advantage. Last month, the U.S. Supreme Court declined to take action on South Carolina’s 1st Congressional District. In January 2023, a three-judge federal panel had declared it an illegal racial gerrymander that must be redrawn before another election was held. In Florida, the congressional map has faced long-running discrimination lawsuits in both state and federal courts, with one state judge ruling that a district near Jacksonville disadvantaged voters of color. A higher court overturned that judgment, but an appeal from voting rights and civil rights groups is still pending before the state Supreme Court, which has said it could be months before it rules. A decision about another contested district in Utah is pending with the state Supreme Court and seems unlikely to be resolved before the elections, according to Mark Gaber of the Campaign Legal Center, who represents plaintiffs in a partisan gerrymandering lawsuit. Put in place in 2021 after the last federal census, the controversial maps were used in multiple elections during the 2022 election cycle. “The long, extended delays are a real problem, for voting rights and particularly for Black voters,” Gaber said. The cases illustrate how difficult it is to reverse gerrymandered voting maps. Even when lower courts find election maps illegal and give state legislatures months to make corrections, appeals and other delaying tactics can run out the clock as elections near. Federal courts have been reluctant to make mapping changes too close to elections because of a vague legal idea known as the Purcell principle, based on a 2006 court case from Arizona that found that voters may be confused by late changes in polling places or election procedures. The U.S. Supreme Court cited Purcell in 2022 when it left an illegal congressional map in place in Alabama for midterm elections while it considered a Republican appeal. Black voters cast their ballots under a discriminatory map, and when the Supreme Court finally decided the case in 2023, it reaffirmed that Alabama’s map violated Section 2 of the Voting Rights Act and must be redrawn. A new map is now in place for 2024, which could result in the election of a second Democratic representative for the state in November. The Supreme Court made a similar call in 2022 in a Louisiana redistricting case after a federal court struck down the state’s congressional map. Voters cast ballots in 2022 under the challenged map. Since then, the state Legislature has redrawn the map and created a second majority-Black district that could help Democrats gain another seat in Congress. The exact cutoff for applying the Purcell principle has not been defined, but conservative Supreme Court Justice Brett Kavanaugh, who has cited it in his opinions, has said the principle reflects a “bedrock tenet of election law.” The delayed rulings and actions in Alabama and Louisiana and a ruling this week in Washington state have favored Democrats. On Tuesday, the Supreme Court declined to stop a new state legislative map from going into effect in Washington, where a lower court had found discrimination against Latinos in the Yakima Valley. Republicans had filed an emergency appeal since the new map disrupts four legislative seats currently held by the GOP. In South Carolina in early 2023, a three-judge federal panel unanimously found that the GOP-controlled state Legislature drew an illegal racial gerrymander in the 1st District near Charleston, discriminating against 30,000 Black residents who were moved out of the district. Republican lawmakers have acknowledged they wanted to maintain firm GOP control of a swing district, currently held by Rep. Nancy Mace. But they have denied discriminatory intent. ProPublica reported that Democratic Rep. James Clyburn, the state’s most influential Black elected official, gave detailed confidential input through one of his aides during the creation of the state’s maps. Clyburn offered Republicans a draft map that included his recommendations for how to add voters to his largely rural 6th District, which had lost a significant Black population, and move unpredictable pockets of white voters out of his district. On NBC’s “Meet the Press” on Sunday, Clyburn denied playing a significant role in a Republican gerrymander. “When someone picks up the phone and asks you, ‘What are your suggestions as we’re about to get these lines drawn?’ I offered my suggestions,” Clyburn said. Adam Kincaid, the director of the National Republican Redistricting Trust, said Clyburn’s comments suggest he is “trying to get in front of ” a Supreme Court decision that will uphold the Legislature’s maps. “I think Mr. Clyburn believes South Carolina is going to ultimately win,” he said. The case is now at the Supreme Court. The court heard oral arguments on Oct. 11, then went silent as South Carolina’s filing deadline for June primary elections loomed. In recent months, lawyers for GOP legislators asked the Supreme Court to abide by the Purcell principle and allow the challenged map to stand for 2024. Lawyers for the South Carolina NAACP argued there was plenty of time to implement a corrective map. After waiting for the Supreme Court to act, the same lower court that found the district discriminatory ruled that the map would have to remain in place after all, saying it wanted to avoid voter confusion. “The ideal must bend to the practical,” the court said. The South Carolina case shows how the Supreme Court’s “inaction can be as consequential as an adverse action,” said Wilfred Codrington III, an associate professor at Brooklyn Law School who has written on the Purcell principle and its impact on voting rights. Civil rights advocates condemned the court’s unwillingness to make a timely decision, which by default gives a competitive election advantage to Mace. “No one believes they were just too busy to rule in time. It’s an intentional partisan maneuver,” tweeted Lynn Teague, vice president of the League of Women Voters of South Carolina, which has been active in the redistricting case. In the Florida case, a federal three-judge panel on March 27 upheld an election map pushed through the Legislature by Gov. Ron Desantis. The decision allows elections to proceed this year while a separate state case awaits resolution. The federal panel said plaintiffs failed to prove that the state Legislature was motivated by race when it approved a Desantis-engineered plan moving Black voters in the 5th District into four majority-white districts. The 5th District seat is currently held by Republican Rep. John Rutherford, who has no Democratic opposition. Desantis’ redistricting plan has been mired in controversy since 2022, when he vetoed the Republican Legislature’s plan and redrew the map with advice from national Republican consultants. A key feature of the Desantis plan was redrawing the majority-Black 5th District near Jacksonville. A state judge previously struck down his map as a violation of the constitution, which provides additional protections for voters of color. An appeals court overturned the judge’s ruling, but the Florida Supreme Court has agreed to hear the case. The Utah case involves a challenge to the state’s Republican Legislature for repealing a voter-passed initiative setting up an independent redistricting commission and then passing a partisan gerrymander that splits up communities around Salt Lake City. Utah has four congressional seats, all held by Republicans. “We’re still waiting to hear from the court whether the claims that we raised are viable, and we're hopeful,” Gaber said. “But I do not think there’s a likely chance of a decision that would affect this year’s elections.” Kincaid, who coordinates national Republican redistricting strategy, said it’s unclear whether court decisions to use contested districts will allow the GOP to maintain its narrow control of the House. “Democrats and their liberal allies have spent hundreds of millions of dollars to try to sue their way into congressional and legislative majorities,” Kincaid said. When the House majority is decided in November, he said. “I would rather it be us than them.”
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[l] at 4/3/24 3:00am
by Megan Rose ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. A federal judge ruled in March that ProPublica’s lawsuit against the secretary of defense should move forward, as the news organization seeks to increase public access to the military’s court proceedings and records. ProPublica sued in 2022, claiming the Pentagon has failed to issue rules ensuring that the services comply with a law that was supposed to make the military justice system more transparent. Although ProPublica’s lawsuit originated from a single high-profile arson case in which the Navy refused to release records, the suit challenges the overall legality of the Pentagon’s current guidance, which allows the services to shroud much of the court-martial process in secret. ProPublica has asked the court to order Secretary of Defense Lloyd Austin to issue proper rules for the release of records and other key information, such as hearing schedules. The government tried to get that part of the lawsuit dismissed, arguing that Austin had already used his rightful discretion to decide how to implement the law. An order “dictating the precise content of DOD guidance is beyond the jurisdiction of the courts,” the said. The judge disagreed, writing that ProPublica has “plausibly alleged that the issued guidelines are clearly inconsistent with Congress’ mandate.” This is most apparent, the judge said, in the allegation that the Navy denies the public access to all records in cases that end in acquittals. “We’re thrilled with this ruling,” said Sarah Matthews, deputy general counsel for ProPublica. “It recognizes that the military’s current guidelines clearly fail to ensure public access as required by Congress. That’s huge and should be a wake-up call to the Department of Defense, regardless of the outcome of this case.” In 2016, Congress passed a law requiring the U.S. military’s six branches to increase public access to its court records, envisioning a system similar to federal courts, where the public has real-time electronic access to dockets, records and filings. It wasn’t until last year — seemingly spurred by ProPublica’s lawsuit — that Caroline Krass, general counsel for the Defense Department, issued new guidance for court records. But rather than making the system more transparent as lawmakers intended, Krass’ guidance mostly reinforced the individual services’ policies, which keep court records largely inaccessible to the public. Under the guidance, services do not have to make any records public until more than a month after a trial ends; have the discretion to permanently suppress key trial information, such as transcripts and exhibits; and are allowed to keep the entire record secret indefinitely in cases when the defendant is found not guilty. As a result, the Navy withholds records during most, if not all, court-martial proceedings. The lead-up to a court-martial, and all related pretrial records, are never made public by the Navy. The public doesn’t know if a sailor or Marine has been charged with a crime unless the case goes to trial. And although Article 32 hearings, which determine if there’s enough evidence for trial, are supposed to be public, the Navy provides no notice of when the service is holding them. The U.S. Army’s policies are similarly secretive. The service updated its rules late last year after Krass’ guidance was issued but, like the Navy, kept restrictions in place and gave officials broad discretion in many cases to decide whether to release any documents at all. Lt. Col. Ruth Castro, an Army spokesperson, said if court records are requested by the public, the decision to release them is made by several high-level officials to “ensure consistency” and “properly balance the privacy issues of the accused, minors and victims.” The Army also does not tell the public about Article 32 hearings, which “lets military officials decide to keep cases secret that might be embarrassing to the military,” said Frank Rosenblatt, president of the National Institute of Military Justice, a group that aims to improve fairness in the court-martial system. “Whether a case is in the ‘public interest’ should be decided by the public, not military officials.” Since the Army, Navy and Marine Corps make up about three quarters of the military, the public is largely in the dark about the majority of the military’s criminal justice system. In the last year, ProPublica has requested that the Navy provide the records for more than 90 cases of sexual assault and has received only partial documents for 32 cases that were already over. “Collectively, the Navy’s policies prevent any meaningful oversight of its court system, including any visibility into how it handles sexual assault cases, a matter of paramount public importance,” ProPublica’s lawsuit states. The military’s handling of sexual assault was deemed so inadequate by Congress that commanders were recently stripped of ​​the power to press or drop charges in those cases. Last summer, President Joe Biden signed an executive order finalizing Congress’ mandate to give the power instead to a special prosecutor. The Navy’s current policies prevent the public from learning whether the new system is any better than how it previously handled such cases. ProPublica’s lawsuit began in 2022 when the news organization fought for the release of court records in the case against Seaman Recruit Ryan Mays, who had been accused of setting fire to the USS Bonhomme Richard. The $1 billion amphibious assault ship burned for more than four days and was destroyed in 2020. A ProPublica investigation showed the Navy prosecuted Mays with little evidence and ignored a judge’s recommendation to drop the case. Mays was found not guilty at his court-martial. ProPublica was successful in getting the Navy to release hundreds of pages of court-martial documents in the Mays case. ProPublica had sued the judge in the Mays case along with top Pentagon officials, but the court dismissed the judge from the suit since the Mays case is over. In the ongoing lawsuit, ProPublica is also arguing that the records are owed to the public under the First Amendment and common law, which the Navy did not try to dismiss at this time. The judge ordered the parties to file motions by September, which could resolve the case.
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[l] at 4/2/24 12:35pm
by Jake Pearson ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. As New York lawmakers hammer out a more than $200 billion budget this week, they may include $5 million to improve the state’s troubled guardianship system, which oversees the physical and financial welfare of tens of thousands of New Yorkers who the courts have said cannot care for themselves. The modest allotment, which was advanced by the state Senate, would continue to fund a statewide hotline that launched last June and has advised hundreds of people considering guardianship for their relatives or friends. And it would give new support to nonprofits that provide services to poor adults who have nobody else to help them — known in the industry as “the unbefriended.” “It’s not going to fix the whole problem, but it’s a step in the right direction,” said Kimberly George, a leader of Guardianship Access New York, which lobbied for the additional money. The relatively small price tag doesn’t mean the Senate’s proposal will make the final cut in this week’s budget talks; the assembly and Gov. Kathy Hochul, a Democrat, have proposed even less in their spending plans: just $1 million to continue the guardianship hotline. Neither the governor’s office nor Speaker Carl Heastie responded to requests for comment on the gap. The three parties must now reach an agreement on the issue — and the overall budget — by Thursday. The effort to secure more public funding for guardianship follows a series of stories by ProPublica last month highlighting how New York’s overtaxed and loosely regulated guardianship system is failing thousands of vulnerable people. Part of the problem, the reporting showed, is a dearth of guardians for poor New Yorkers — something the Senate proposal would help address. New York City, for instance, relies on private attorneys who work the cases for free, along with a small network of nonprofits. In recent years, two such groups abruptly shut down due to financial strains. But the legislative proposal does not address the system’s lax oversight of those guardians. In New York City, there are 17,411 people in guardianships — 60% of the statewide total — and only 157 examiners to scrutinize how guardians handle their wards’ finances and care, according to data from the courts. In some cases, ProPublica found, abuse, neglect or fraud went on for years before it was noticed by authorities — if it was noticed at all. Advocates have long pushed for a comprehensive overhaul but said any additional resources in the budget would improve the existing system, which is stretched beyond capacity. “The problem is so big, and the population is continuing to age and the need is growing so rapidly, that if we wait for a whole solution, nothing is going to be fixed and it’s just going to get worse,” said George, who also heads Project Guardianship, a nonprofit group that serves as guardian to about 160 New York City wards. She and others hope the Senate’s proposal is just the first step in a series of legislative actions. Legislators remain in session until June. Sen. Kevin Thomas, a Long Island Democrat who last year secured the initial $1 million to launch the statewide guardianship hotline, is leading the campaign for the additional funding. In February, he sent a letter — signed by 14 of his colleagues — to Democratic Majority Leader Andrea Stewart-Cousins asking her to back the $5 million appropriation, which would “stand to benefit thousands of aging and incapacitated New Yorkers.” “New York State is fortunate to have strong legal protections that entitle individuals access to guardianship services when necessary,” the lawmakers wrote. “However, this mandate is underfunded and there is currently no direct funding stream to ensure statutory compliance.” Among the signatories were the chairs of the Aging, Health and Judiciary committees in the Senate. Assembly Member Charles Lavine, another Long Island Democrat and the chair of the chamber’s Judiciary Committee, sent a similar letter to the assembly speaker in support of the $5 million proposal. In addition to the budget deal, there are indications that Albany is considering more sweeping reforms. Lavine said in a statement that he was “discussing” the problems highlighted by ProPublica with judicial officials “with a view towards enacting responsive legislation.” Assembly Member Amy Paulin, a Democrat who chairs the chamber’s Health Committee, called ProPublica’s reporting “concerning, if not distressing,” and said she planned on “looking more into this” after the budget is complete. And Gustavo Rivera, a fellow Democrat and Paulin’s counterpart in the Senate, said he was “open to reviewing” reforms to guardianship after the budget is approved so that lawmakers “can adequately improve a failing system that is exploiting too many vulnerable New Yorkers while enriching the pockets of a few.” In addition to providing more money for guardians and examiners, experts say lawmakers could strengthen the examination process, mandate more stringent training for guardians and implement maximum staff-to-ward ratios that keep caseloads manageably low. Lawmakers have known for decades that the guardianship system is in dire need of an upgrade to meet the needs of those it serves. Indeed, shortly after they passed the law that governs adult guardianships 30 years ago, judges pleaded with Albany to provide critical funding for the indigent and to institute other reforms. Those efforts were unsuccessful, and in the decades since, others have made similar trips to the capitol, producing reports and holding roundtables highlighting the system’s failures. Yet these efforts have had little effect. Advocates hope that will change given the state’s aging population — an estimated 5.6 million New Yorkers will be 60 or older by 2030 — and Hochul’s plan to help meet its needs. Judges have said the elderly make up a significant segment of those in guardianship since many who suffer from dementia or Alzheimer’s disease need help caring for themselves. Arthur Diamond, a former supervising guardianship judge on Long Island who has long called for reforms, said he was cautiously optimistic that state legislators and judicial leaders were finally serious about rectifying the system’s deep-seated problems. “I think that if a year from now, we’re in the same spot, I’m going to give up,” he said of his advocacy. “But these people told me in good faith that they were interested and wanted to help, they told me they are working on remedies, and I take them at their word.”
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[l] at 4/2/24 3:00am
by Heather Vogell ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. If you’re a parent, you might have noticed toddler “milk” while browsing the formula aisle. The powdered drink, aimed at children between 1 and 3, often pledges benefits like “improved brain development” or “improved immune function.” But you may not know that these products are largely unregulated and make claims that are not supported by science, according to studies. For this reason, among others, public health authorities around the world have long sought to police such advertising. Yet despite these efforts, toddler milk has grown to become a $20 billion global business. As ProPublica reported recently, the U.S. government has played a key role in that growth. We found federal officials have worked for decades with the multibillion-dollar baby formula industry to mount a global campaign to suppress regulations such as marketing bans — often, critics say, at the expense of public health, particularly in developing countries. Toddler milk, it turns out, is just the latest chapter in this long-running saga. Below is a list of key questions and answers about baby formula companies’ business overseas and how the U.S. government has supported those corporate interests. 1. What is baby formula and when is it typically used? According to the Federal Food, Drug, and Cosmetic Act, infant formula is a special food suitable to serve as a complete or partial substitute for breastmilk. It’s used for babies under age 1. 2. Why is baby formula advertising regulated? Formula is one of only two products in the world for which there are international recommendations that countries prohibit their marketing. The other is tobacco. People in the U.S. today may find that shocking, since formula is a regular part of life for many parents. But more than four decades ago, concerns about unregulated advertising of formula surfaced after health advocates found that companies such as Nestle had targeted developing nations in places like Africa in hopes of increasing formula sales. Thousands of babies were growing ill and dying because these populations had neither the clean water they needed to mix the formula safely nor the resources to buy enough of the expensive product. In response, the World Health Organization’s member nations established an international code advising countries to prohibit the marketing of infant formula. 3. Why do medical professionals generally agree that breastfeeding babies is preferable to formula? The WHO and UNICEF recommend that babies breastfeed exclusively for six months and continue through their second birthday and beyond as other foods are introduced. The benefits are well-documented. Studies have found fewer infant deaths and infections among breastfed children and fewer incidences of long-term conditions like diabetes and obesity. The formula industry acknowledges the benefits. “Breast milk offers a child the best nutritional start in life,” a spokesperson for formula maker Danone said. But “if parents cannot or choose not to breastfeed their baby, formulas are recognized by leading medical societies as the only safe and nutritionally adequate alternative during a baby’s first year.” Public health advocates, however, worry that the industry’s aggressive advertising — which often includes steep discounts and free samples — will derail a critical cycle for those who intend to breastfeed. Regularly giving your baby formula can cause your breast milk supply to drop, research shows, making your child more reliant on formula. “The evidence is strong,” a report from the WHO and UNICEF explains. “Formula milk marketing, not the product itself, disrupts informed decision-making and undermines breastfeeding and child health.” Toddler milk is sold with a promotional musical play set at a Bangkok grocery store. (June Watsamon Tri-yasakda, special to ProPublica) 4. What is toddler formula and what are the concerns about it? So-called toddler formula, also known as growing-up milk, typically targets children between the ages of 1 and 3 — a time when many parents begin giving their children cow’s milk and more regular foods. Toddler milk often contains nutritional supplements like DHA, an omega-3 fatty acid, and promises benefits for brain and eye health. In Thailand, we even found a brand called “Hi-Q1.” Health authorities, however, say these claims are dubious. In fact, last fall, the American Academy of Pediatrics warned that toddler milks are “misleadingly promoted as a necessary part of a healthy child’s diet.” The drinks are worse than infant formula for babies under 1 year and do not offer any benefits over cheaper cow’s milk for most children older than 1, according to Dr. George Fuchs III, a lead author of the organization’s report. Nutrition experts also caution about the hefty doses of sweeteners and sodium in some brands. The industry defends toddler drinks. They “can contribute to nutritional intake and potentially fill nutrition gaps for children 12 months and older,” according to the Infant Nutrition Council of America, a formula industry trade group. 5. Is toddler formula regulated in the U.S.? Unlike baby formula, which must meet certain nutritional requirements, toddler formula is not regulated by the Food and Drug Administration in the U.S. 6. What role does the U.S. government play in American companies’ efforts to market baby formula overseas? Our reporting examined the industry’s interactions with a number of federal agencies. A key one was the Office of the United States Trade Representative, which advises the president on trade policy and seeks to promote American business interests. Records show that USTR staff were in regular contact with formula makers and their industry groups through meetings, calls and position papers. Trade officials then mirrored those positions in communications with other countries or in international forums like the World Trade Organization, documents show. In many places, the U.S. efforts appeared to succeed. Hong Kong, Indonesia and Thailand, among others, watered down or put on hold regulations aimed at restricting formula advertising after U.S. objections. The U.S. Has Waged a Global Campaign Against Formula Regulation U.S. agencies have intervened in at least 17 jurisdictions over the last several decades on behalf of the formula industry, often to oppose measures that would restrict formula marketing or require additional safety precautions. Source: ProPublica review of academic research, World Trade Organization records, letters and other U.S. government documents, WikiLeaks cables and news accounts. (Lucas Waldron/ProPublica) 7. Why has the U.S. government worked to reduce regulations on baby and toddler formulas? The U.S. is a significant exporter of formula, and the industry has spent considerable resources to protect its financial interests abroad. Its lobbying activity related to foreign health policy ramped up beginning in 2016, as World Health Organization nations considered a resolution aimed at ending the promotion of toddler formula. That year, the Infant Nutrition Council of America lobbied the USTR and at least four other departments, as well as the Senate and the House, regarding the WHO effort. Leaders in both parties took notice. House Speaker Paul Ryan even called President Barack Obama about the issue, according to records obtained by ProPublica. Trade officials’ concerns have often reflected those of the industry itself. In one case, they said in a draft letter that proposed rules “would result in significant commercial loss for U.S. companies.” In another case, they worried that a marketing proposal would have a regulatory “spillover” effect in Southeast Asia, one of the industry’s top markets. The USTR declined to comment on specific cases but said more generally that, under President Joe Biden, the trade office has emphasized respecting the role of foreign governments in deciding the appropriate regulatory approach to infant formula. 8. How is the marketing of baby formula regulated in the United States and abroad, if at all? In 1981, WHO member nations adopted the International Code of Marketing of Breast-Milk Substitutes, which aimed to curb the worldwide promotion of products that could replace breast milk. The U.S. was the only nation to oppose it. Since then, at least 144 countries have sought to codify the voluntary restrictions. Such laws often restrict formula marketing in stores, hospitals and elsewhere. Despite poor enforcement in many countries, the laws have had measurable benefits. Countries that have adopted marketing bans have seen their breastfeeding rates rise, studies show, and more breastfeeding is in turn linked to lower infant mortality. It also reduces mothers’ risk of certain cancers. 9. Why are formula companies so focused on developing nations? Developing economies represent big business for the formula industry. One academic study found that low- and middle-income countries accounted for more than 90% of the roughly $19 billion in toddler milk sales in 2022. As incomes have risen in those countries, formula makers saw an opportunity. “In most countries, breastfeeding is incompatible with women participating fully in the workforce,” Kasper Jakobsen, CEO of the formula company Mead Johnson, said in a 2013 earnings call. “As women participate in the workforce, that creates a rapid increase in the number of dual-income families that can afford more expensive, premium nutrition products.” Today, Southeast Asia is more important to the formula industry than the U.S. and European markets combined. Infant Formula Looks Nearly Identical to Toddler Milk on a Grocery Store’s Shelves in Bangkok Thailand's Milk Code restricts the advertisement of infant formula, but marketing of toddler milk is generally allowed. 10. How has formula marketing affected public health in countries such as Thailand? Formula marketing can impact a country’s breastfeeding rates and, in turn, its children’s health, since breastfeeding carries benefits such as fewer infant deaths and infections. Thai officials made a similar argument when they sought to restrict the promotion of infant and toddler formula in 2016. They blamed such advertising, in part, for the nation’s breastfeeding rate, which was among the lowest in the world. Some Thai pediatric authorities also say formula products play a big role in the country’s rising obesity rates because they’re so easy to drink. The share of Thailand’s babies who are exclusively breastfed for six months has rebounded somewhat but has a long way to go to meet the WHO’s target of 50% by 2025. 11. Is the United States alone in promoting baby formula overseas, or do other countries do the same? Other dairy and formula-producing countries also promote their products abroad and, at the World Trade Organization, countries such as Australia and New Zealand sometimes join the U.S. in objecting to formula regulations. But the U.S. brings outsized economic and political clout to the debate. “The U.S. is highly influential,” said Dr. Robert Boyle, of the Imperial College London, who has researched international formula use. 12. Is the USTR’s lobbying on behalf of the baby formula industry any different than what it does to promote other U.S.-based companies? According to the USTR website, part of the office’s job is to work for the “expansion of market access for American goods and services.” In formulating its official positions on issues, the USTR says it consults with various federal agencies, including those focused on health. But our reporting shows that these debates can be contentious, with trade concerns often trumping public health. In 2016, for example, USTR officials repeatedly questioned well-established science as they sought to water down a WHO resolution that aimed to restrict formula marketing and increase breastfeeding. The USTR declined to comment on this incident, but it issued a statement acknowledging the office’s “formerly standard view that too often deemed legitimate regulatory initiatives as trade barriers.” 13. The U.S. government has taken pro-industry stances in the Obama and Trump administrations, and it continues to do so in the Biden administration. Is there any reason to believe this might change? It’s unclear. A USTR spokesperson told us that under Biden, the trade office has been committed “to making sure our trade policy works for people — not blindly advancing the will of corporations.” But our investigation found several examples of the trade office under Biden handling formula regulation like it did in past administrations. The USTR did not respond to our questions about these cases.
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[l] at 4/1/24 4:00am
by Stephannie Stokes, WABE, with data analysis by Agnel Philip, ProPublica This article was produced for ProPublica’s Local Reporting Network in partnership with WABE. Sign up for Dispatches to get stories like this one as soon as they are published. K. thought she was one step closer to regaining custody of her children when she secured her studio apartment. It wasn’t much — just a large basement room in an outer-Atlanta suburb that she was able to rent through a friend. But it had a kitchen and living area, and she was able to arrange beds in different corners of the room for her two sons and daughter. “It was cozy,” she said. She hoped this would be enough for the Georgia Division of Family and Children Services to, at last, allow weekend visits with her kids — setting the stage for her to get them back permanently after two years in foster care. But she learned in court, following her caseworker’s inspection of her apartment, that there was a problem: She didn’t have individual bedrooms for her kids. DFCS wouldn’t let them stay there unless she had at least one for her daughter and another for her sons, she said. This didn’t make sense to her — she knew that there were families who lived long term in single hotel rooms without ever triggering child welfare investigations. In fact, DFCS itself has resorted to housing foster children in hotels when the agency can’t find other placements. K., who is identified by her first initial because of her fear of retaliation from DFCS, had worked to fix every other aspect of her life since her kids were taken away. She completed a yearlong drug treatment program, testing clean continuously ever since. She also began work as a home health aide. And she was diligently making child support payments to the state. “I did everything I was supposed to do,” she said, her voice shaking as she stressed this point. That was in 2019, and K. quickly turned her attention to improving her housing situation, seeing it as one more challenge for her to overcome. She didn’t know at the time that it would be another four years, until 2023, when her family would be finally reunited. Her kids, by then teenagers, had been in foster care for almost six years. Inadequate Housing Was Associated with Significantly Longer Foster Care Stays In Georgia, children whose cases cited "inadequate housing" typically took three months longer to reunify with their families than those whose cases did not. Only foster care cases in which children were reunified with their caretakers were included in this analysis. Source: ProPublica analysis of National Child Abuse and Neglect Data System records (Agnel Philip/ProPublica) K.’s case is a striking example of the way parents’ housing instability can lengthen their children’s stay in foster care. In Georgia, WABE and ProPublica found, versions of her experience play out across the child welfare system. An analysis of data reported to a federal repository of foster care and adoption cases between fiscal years 2018 and 2022 shows that, in Georgia, cases that included “inadequate housing” as a reason for removing a child typically took 11 months to reach reunification, three months longer than cases that did not. Foster care cases associated with inadequate housing took longer to resolve than cases involving allegations of physical or sexual abuse. Interviews with more than a dozen attorneys, judges and advocates in Georgia’s child welfare system confirmed the delays that housing can cause. They described cases similar to K.’s, in which parents overcame issues like drug addiction and mental health struggles but still waited months to be reunited with their children because of their housing situation. “These kids just sit in foster care,” said Melanie Dodson, a family law attorney based in Cleveland, Georgia, offering a typical example, “because mom and dad are working at Subway and can’t afford a four-bedroom house.” While all agreed that a shortage of affordable units is a major obstacle, several attorneys and advocates said DFCS adds to the challenge for low-income parents by insisting their housing meet requirements that can be unattainable. They said it’s often not enough for parents to provide shelter to get their kids back; DFCS may ask for a formal lease or for the home to be of a specific size. K.’s example, they said, is common: The agency often argues in court that parents must provide individual bedrooms for children of different ages and genders. DFCS spokesperson Kylie Winton didn’t provide explanations for any of these requirements, which aren’t written down in any statewide policy. But she noted that the agency designs its recommendations for housing based on the needs of each family. Ultimately, she added, judges decide what conditions are appropriate for reuniting children with their parents. But attorneys and advocates, who practice in counties throughout Georgia, said many judges are reluctant to return children to parents with housing that doesn’t win DFCS’ endorsement. They also said while the agency may not have a statewide policy, they've noticed a pattern of DFCS arguing for the same stringent housing requirements across many county courtrooms. While stringent housing requirements aren’t unique to Georgia, experts say they can be especially difficult to meet in the state, given how little housing assistance is available to families through its child welfare system. If your issue is housing, that’s a societal problem, not an individual failing, and we need to dig a little bit deeper to come up with a way and a solution to that problem that doesn’t scar children. —Vivek Sankaran, a professor at the University of Michigan and an attorney representing parents and children As WABE and ProPublica reported in January, DFCS invested only a tiny portion of its resources toward housing assistance in recent years despite citing “inadequate housing” among its reasons for removing children in roughly 20% of foster care cases. Child welfare agencies in several other states allocated significantly more to provide housing to families, including those working to reunite with their kids in foster care. Vivek Sankaran, a professor at the University of Michigan and an attorney representing parents and children, said Georgia’s child welfare system should provide housing assistance to parents — or simply return their children. Prolonging a family’s separation for housing alone goes against federal and state guidelines, including Georgia’s, he argues, which emphasize that child welfare systems should return children as soon as possible. “If your issue is housing, that’s a societal problem, not an individual failing,” Sankaran said, “and we need to dig a little bit deeper to come up with a way and a solution to that problem that doesn’t scar children.” Attorneys and advocates told WABE and ProPublica that parents who are trying to reunite with their children in Georgia are often expected to meet housing requirements that go far beyond the conditions that would justify a child’s removal. Heather Daly, an attorney who represents children and parents in child welfare cases, said she has often seen DFCS refuse to approve of housing that parents share with relatives. That’s a problem for many of her clients who come from rural areas and often live with family to cut costs. Daly said DFCS may label a multigenerational home as unsafe because a grandparent has a 20-year-old criminal charge or because relatives refused to be fingerprinted for background checks. Any past history with DFCS, no matter the circumstances, can also lead the agency to discourage returning children to the household. In court, Daly said, she tries — with little success — to point to other families who are able to share homes without DFCS getting involved or running background checks. “I mean, most of this generation is living with their parents right now,” she said. ”And this is nothing different.” Several attorneys and advocates pointed to another obstacle to reunification: DFCS sometimes won’t accept housing unless parents can prove that they have a right to stay in it long term. Colleen Puckett, whose children were formerly in foster care and who now helps others navigate the reunification process across the state, said sometimes parents can get around this if they’re able to draft leases with the relatives or friends they’re staying with. But that’s not possible to arrange with extended stay hotels and homeless shelters. It’s also not uncommon for DFCS to request that parents secure housing with a lease of their own, attorneys and advocates told WABE and ProPublica. Even when parents manage to accomplish that, they may still have to maintain the housing for six months before they can reunite with their children. The problem with these rules is that few families in the child welfare system can afford — or qualify for — housing that comes with the space and certainty DFCS is demanding, attorneys and advocates said. Many parents face challenges similar to K.’s. Because of criminal charges from when she was using drugs, many landlords refused to rent to her. Even if they had accepted her record, they also required incomes that were three times the rent, far outside the scope of her $11-per-hour wage. Having an open child welfare case only makes the housing situation more difficult for parents like K. because they’re often hit financially — and are thus less likely to be able to afford rent — when they have to miss work to complete the requirements of their case, such as attending court hearings, seeking therapy or making visitations with their kids. On top of that, many can’t receive assistance from social service organizations until they can get their kids back. “It just delays reunification significantly,” Puckett said. Peggy Walker, a judge who has presided over child welfare cases in Georgia courts for more than 25 years, acknowledged that housing requirements often are more stringent for parents in the child welfare system and explained that that’s because judges are trying to eliminate the risk of children reentering foster care. “You have traumatized that child by removing them,” Walker said. “If you put them back too soon, you have to turn around and remove them again.” Walker said this consideration could lead judges to deny housing situations that may be acceptable for parents who aren’t involved in the child welfare system — though she said the requirements should be specific to the case. If the relatives have a history of kicking the parents out, for instance, then she said she might not have approved that housing situation for returning the children. She said if the family is known to be supportive, however, she would consider returning children to their home. Regarding families with criminal histories, Winton, DFCS spokesperson, said the agency evaluates each situation to determine whether prior charges present a risk to the child. You have traumatized that child by removing them. If you put them back too soon, you have to turn around and remove them again. —Judge Peggy Walker But attorneys and advocates said too often DFCS officials and judges insist on parents providing an ideal environment for their children. Sankaran, the University of Michigan professor, said that shouldn’t be the bar parents have to meet in order to regain custody of their kids. “We’re never going to in any of our lives get to a place where there’s zero risk for any of us,” he said. Instead, Sankaran said, the requirements should be based on what is safe enough. In its manual, DFCS outlines housing conditions — including exposed wiring, raw sewage and rodent infestations — that pose a threat to children’s safety and may warrant their removal into foster care. Sankaran said those kinds of concerns should be used as the guide for defining the conditions for reunification. The child welfare system isn’t supposed to wait years to find a permanent outcome for parents and their children. Federal and state laws call for DFCS to make “reasonable efforts” to reunite parents with their children — Georgia's code specifies “at the earliest possible time,” repeating the phrase in its code section three times. State Rep. Mary Margaret Oliver, a longtime Democratic lawmaker who has authored several legislative changes to the foster care system, said this should include connecting parents to housing once they have resolved other safety concerns. “If we are not able to provide a competent working parent with a place to live, I think that we’re failing in our obligation to reunite the family,” she said. That obligation exists in part because the cost of delaying reunification can be significant, said Melissa Carter, who leads the Barton Child Law and Policy Center at Emory University and is a former director of Georgia’s Office of the Child Advocate. The longer children are in foster care, the more likely they are to be bounced from home to home because of changes or conflicts with their foster placements. According to state data reported to the site Fostering Court Improvement for fiscal year 2023, 66% of children who were in Georgia’s foster care system for more than two years had been moved three or more times. Carter said these disruptions can affect a child’s ability to trust and form attachments, stay connected to their siblings and keep up in school. “So it’s just this kind of compounded experience that comes from the destabilization and trauma that comes with removal,” she said. This is why federal law requires states to pursue adoption, terminating the parent’s rights, if they haven’t met the requirements for reunification by 15 months — unless child welfare agencies can provide “compelling reasons” to keep the case open beyond that deadline. K. was aware of that timeline from other parents in the child welfare system. As months and court dates passed and a pandemic unfolded, she said she was grateful that the judge continued to give her a chance. “By the grace of God, he kept giving me another six months,” she said. “But he knew the only thing holding me up was housing.” When she was finally able to convince a property manager in rural Georgia to rent her a two-bedroom townhome, K. was full of excitement, writing on Facebook, “GOD IS SO GOOD, ON TIME, AND ABUNDANT!” She said the reunification with her children that followed was happy — at first. It is so wonderful to look at them and see that they’re home. —K. But K. soon saw the consequences of the years her children spent in foster care. She thought they would be glad to have their mom back. In reality, she said, they’re angry and resentful toward her. According to K., they tell her she abandoned them. They don’t believe she only needed housing for reunification. They tell her she was just using drugs the whole time. “I didn’t abandon you,” she said she told them. “I was working to get you back.” But K. says her pleading is of no use. She said her kids’ anger also comes out at school, leading to suspensions. The behavior has been severe enough that she had to let go of one of her jobs. DFCS did provide her with one month of rental assistance — but only after her children had already been home for months. But now K. is again struggling to make her rent. As she tries to keep the home together, she’s weighed down by guilt from what her children went through. The moments she’s able to appreciate her family’s reunification, after so much time apart, are often limited to the night, when her children are asleep. K. can’t help but watch them. “It is so wonderful to look at them and see that they’re home,” she said. How We Analyzed the Effect Housing Has on Foster Care Stays We analyzed data from the Adoption and Foster Care Analysis and Reporting System to determine whether a child removal citing “inadequate housing” was associated with longer foster care stays in Georgia. The AFCARS data, obtained from the U.S. Department of Health and Human Services’ National Data Archive on Child Abuse and Neglect, required steps to clean and deduplicate before we could analyze it. We used unique identifiers for children called AFCARS IDs and dates when a child was last taken into foster care to remove duplicates. We then filtered the dataset to removals that occurred from July 1, 2017, to June 30, 2022, corresponding to Georgia’s 2018 to 2022 fiscal years. We then grouped by removal reason and calculated the median time between removal and discharge for cases in which children were reunited with their caretakers. For this grouping, we counted cases citing the removal reason alone or in combination with other removal reasons. For a case in which two different removal reasons are cited, its reunification time was included in the calculation for each of the removal reasons. To further examine this issue, we developed several statistical models to isolate the effect of the housing removal reason. We controlled for other removal reasons and the age of the child, including interactions those variables had with the housing removal reason. In every model we tested, housing was associated with longer foster care stays to a high level of statistical significance. The data used in this story was obtained from NDACAN via Cornell University and used in accordance with a terms of use agreement license. The Administration on Children, Youth and Families; the Children’s Bureau; the original dataset collection personnel or funding source; NDACAN; Cornell University; and their agents or employees bear no responsibility for the analyses or interpretations presented here.
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[l] at 3/29/24 10:20am
by Lomi Kriel and Lexi Churchill 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. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues. Nearly two years after a gunman killed 19 children and two teachers at a Uvalde, Texas, elementary school, investigations have offered strikingly different assessments of the botched law enforcement response, fueling frustrations and additional calls for transparency from victims’ families. Many families had expressed hope that law enforcement officers would be held accountable after a scathing Justice Department report in January detailed “cascading failures of leadership, decision-making, tactics, policy and training.” At an associated news conference, U.S. Attorney General Merrick Garland said lives could have been saved had law enforcement acted sooner. But just two months later, Uvalde residents said they felt whipsawed when a private investigator hired by the city cleared all local police officers of wrongdoing, even praising some of their actions. Now, families anxiously await the results of the only remaining investigation: a criminal case brought by Uvalde District Attorney Christina Mitchell, for which a grand jury began reviewing evidence in January. It will determine whether any of the nearly 400 federal, state and local officers are criminally charged. “For the most part, we just feel like we’ve been let down,” said Jesse Rizo, an uncle to 9-year-old Jackie Cazares, who died during the May 2022 shooting. Families continue to push for transparency but feel like they are getting little help from elected officials, Rizo said. He added, “We feel betrayed.” If history is any indication, bringing charges against officers will be difficult. The only known previous attempt to prosecute an officer for such inaction during a mass shooting came after the 2018 school massacre in Parkland, Florida. The effort failed last year after a jury acquitted him. Jaclyn Schildkraut, executive director of the Regional Gun Violence Research Consortium, said that in the 17 years she has studied mass shootings, she has never seen the level of inaction that took place in Uvalde. But Schildkraut said that, in most instances, federal protections shield law enforcement officers from prosecution for doing their jobs. Aside from that, she said, the sheer number of responding officers in Uvalde makes it difficult to single out individuals responsible for the “catastrophic failure.” “You don't have one person in question as being part of this issue in Uvalde,” Schildkraut said. “You have 380 people potentially being in question.” In the absence of clear answers from government officials, families have filed civil lawsuits and are supporting litigation by multiple news organizations, including ProPublica and The Texas Tribune, that are seeking the release of body-camera footage, police radio recordings and other records related to the shooting. Last year, a state district court ruled that such records must be released, but the Texas Department of Public Safety appealed that ruling. DPS and Mitchell have argued that their release could interfere with any potential criminal prosecution. Neither Mitchell nor DPS responded to multiple questions. “There is simply no reason to keep the investigative file under wraps because of a grand jury that may or may not act,” said Laura Prather, an attorney representing the news organizations in the lawsuits. (Prather also represents ProPublica in an unrelated legal matter.) Prather said releasing the records would have “zero impact” on a possible criminal trial because evidence has already been collected and will not change. “This is really just the fox guarding the hen house,” she said. Below is a list of where the investigations and publicly known personnel actions stand as victims’ families await the grand jury’s decision. Uvalde Investigations At least six investigations have been launched since the shooting. They include: More than a month after the shooting, Texas State University’s Advanced Law Enforcement Rapid Response Training Center, which the FBI has rated as the national standard in active shooter training, released an initial report on the response at the request of DPS. The analysis, which relied on limited information provided by DPS, including a briefing with investigators, a timeline provided by the agency and surveillance footage, was intended to identify training gaps. Once released, the analysis drew criticism from some for reinforcing the narrative put forward by DPS that local law enforcement was mostly to blame, although hundreds of state and federal officers also rushed to the school. Two weeks later, on July 17, 2022, a state House committee appointed by Republican Speaker Dade Phelan released a 77-page report that provided the first official government assessment of the flawed response. The report relied on radio communications, body-camera footage and interviews lawmakers conducted with responding officers, as well as accounts collected by DPS investigators. It found an “overall lackadaisical approach” by responding officers, adding that many “were given and relied upon inaccurate information. For others, they had enough information to know better.” The Texas Rangers, the investigative arm of DPS, probed law enforcement officers’ actions, including those of 91 of their colleagues in the department who responded to the shooting. A DPS spokesperson told the Tribune in January 2023 that the agency’s initial investigation had been completed. A final report was later delivered to Mitchell so that she could determine whether to press charges. The report has not been publicly released. The DOJ conducted a federal after-action review at the behest of former Uvalde Mayor Don McLaughlin. In January, the nation’s highest law enforcement agency released a 600-page report faulting the response. Among its biggest findings was that officers often had insufficient training, which mirrored findings from an earlier ProPublica, Tribune and FRONTLINE investigation. During a news conference announcing the probe’s results, Garland urged departments across the country to prioritize active shooter instruction. On March 7, the city of Uvalde released an independent review it commissioned. It found that about two dozen city police officers, three dispatchers, the fire marshal and the acting police chief largely followed policy. In the wake of those findings, Brett Cross, father of 10-year-old Uziyah Garcia, who was slain during the shooting, camped outside of the Uvalde Police Department for a week, demanding accountability. “There’s no moving on when you’ve lost a kid,” he said. “You can try to move forward with your new life because it's just a totally strange existence. But we still can't even do that when there's just blatant disrespect by our city and not holding these officers accountable.” Retired Austin police detective Jesse Prado, who conducted the analysis, wrote in the report that he was able to review information only as permitted by the district attorney. (The city has sued her office over that lack of access to records.) Prado declined to comment on the report. At Mitchell’s request, a Uvalde state district judge convened a grand jury in January to hear evidence related to law enforcement’s response to the shooting. Mitchell has said that her office conducted its own probe in addition to the DPS investigation. She has declined to say what charges may be brought and which officers could be prosecuted, citing the secrecy of grand jury proceedings. At the request of the Texas Rangers, Austin’s chief medical officer, Dr. Mark Escott, was examining whether lives could have been saved had victims received quicker treatment, but he said that Mitchell halted his probelast year and never sent him key records. Escott believed at least one person could have been saved but said that the lack of records, including autopsy reports, hindered a final determination. ProPublica, the Tribune, and The Washington Post reported in December 2022 that at least two children and a teacher who died still had a pulse when they were rescued from the school more than an hour after the shooting. Personnel Changes Of the nearly 400 federal, state and local officers who responded to the shooting, about a dozen have been fired, have been suspended or retired. In some cases, the actions were clearly related to the response, but the reasons are less clear for others. Uvalde Consolidated Independent School District: The district fired Police Chief Pete Arredondo three months after the shooting. A nearly 30-year law enforcement veteran, Arredondo was listed as incident commander on the school district’s active shooter response plan, meaning he was supposed to take control. He later told the Tribune and a state House committee that he never considered himself in charge. On the day Arredondo was fired, his attorney argued in a statement that he was being scapegoated. Nearly all of the officers who were with the district’s police department at the time of the shooting also resigned or retired. Uvalde Police Department: Mariano Pargas, who was the acting police chief during the shooting, retired in November 2022 before the City Council was set to vote on his termination. Pargas was the highest-ranked officer initially at the school other than Arredondo, according to the Justice Department report, which said that, as acting chief, Pargas “should have assumed a leadership role.” Police Chief Daniel Rodriguez, who was out of town during the shooting, resigned this month following the release of the city-commissioned investigation. Rodriguez cited family reasons for his decision to depart, saying in a statement that he was “not forced, asked or pressured” to quit. Many officers in Rodriguez’s department lacked sufficient training to respond to a shooting, according to a ProPublica, Tribune and FRONTLINE analysis of records and the Justice Department’s report. Additionally, five other Uvalde police officers have left the department since the shooting, according to the city’s report. None of those officers faced any publicly known discipline. A city spokesperson did not respond to questions about the report. A lawyer representing Uvalde police officers, including Pargas and Rodriguez, said that he and they declined to comment, citing reasons that included the ongoing criminal proceedings. Texas Department of Public Safety: The agency said in October 2022 that it had fired Sgt. Juan Maldonado. A 23-year veteran, Maldonado was one of the highest-ranking state troopers initially on the scene, arriving within four minutes of the shooting. He told investigators that he mostly stayed outside of the shooter’s wing because he was focused on maintaining the perimeter. DPS did not comment on the reasons for his termination. Another trooper, Crimson Elizondo, resigned the same year while under investigation by the department. She quickly joined the Uvalde school district police but was fired after parents raised concerns about her inaction. She was the first state trooper at the scene. Separately, Texas Ranger Ryan Kindell was suspended with pay in September 2022 for failing to perform his duties. In January 2023, the director of DPS, Col. Steve McCraw, issued Kindell a preliminary decision to terminate him. That came with an opportunity to meet with McCraw before the decision was finalized. But that meeting will not occur until the grand jury has made a decision on criminal charges, a DPS spokesperson said. Kindell is still being paid, in accordance with department policy, she said. Kindell, the other state troopers and their lawyers didn't respond to a request for comment. In addition, the agency’s two highest-ranking Texas Rangers, who did not respond to the shooting but initially oversaw the law enforcement investigation, retired in 2022. Chief Chance Collins and Assistant Chief Brian Burzynski could not be reached for comment, but Burzynski told Austin television station KXAN that Uvalde was “an important factor” in his decision. Customs and Border Protection: A spokesperson for the federal agency, which sent the majority of officers to the scene, said in November that an internal investigation into the response was ongoing. The agency did not respond to emails and phone calls about the current status of the probe. Ruben Torres, the father of Khloie, a survivor who was 10 at the time of the shooting and called 911 after the gunman killed her classmates, said that unlike many other families, he does not seek criminal prosecutions of officers. But he said he wishes they would lose their licenses and be barred from a calling he feels their actions have shown they have no right to participate in. “Go find another fucking job, another profession, because you suck at this one,” Torres said.
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by Richard A. Webster, Verite News This article was produced for ProPublica’s Local Reporting Network in partnership with Verite News. Sign up for Dispatches to get stories like this one as soon as they are published. Janice Parker walked into the medical ward at the Louisiana State Penitentiary at Angola several years back, looking for her son, Kentrell Parker. He should have been easy to find. The 45-year-old New Orleans native had been bedridden since an injury in a prison football game left him paralyzed from the neck down more than a decade earlier. His bed was usually positioned near a window by the nurses’ station. When she didn’t see him there, Janice Parker feared the worst. Her son is completely dependent on staff to keep him alive: to feed him, clean him after bowel movements, change his catheter and prevent him from choking. Because he struggles to clear his throat, even a little mucus can be life-threatening. A nurse pointed toward a door that was ajar. Janice Parker’s son was alive, but she was disturbed by what she saw: He was alone in a dark, grimy room slightly larger than a bathroom, with no medical staff or orderlies nearby. He was there, he told his mother in a raspy voice, because a nurse had written him up for complaining about his care. This was his punishment — the medical ward’s version of solitary confinement. He told her he had been in the room for days, Janice Parker said during a recent interview. “There was no one at his bedside. And he can’t holler for help if needed,” she said. For years, Janice Parker said, she has complained to nurses and prison officials — in person, over the phone and through an attorney — about the neglect that she has witnessed on her frequent visits and that her son has described. He has told her that he’s gone days without food. He has developed urinary tract infections because his catheter hasn’t been changed. At one point, Janice Parker said, he developed bedsores on his back because nurses hadn’t shifted his body every few hours. Her complaints have gone nowhere, she said. “I don’t know what to do anymore,” she said. Parker has spoken to nurses and prison officials about the neglect that she has witnessed and that her son has described, but her complaints have gone nowhere. (Kathleen Flynn, special to ProPublica) Kentrell Parker is among the most frail inmates in Louisiana’s prison system, requiring constant care from a medical system that has largely failed to meet the needs of people like him. The deficiencies of Angola’s medical system are well documented: Department of Justice reports in the 1990s, a court-monitored lawsuit settlement in 1998 and a federal judge’s opinions in another lawsuit filed in 2015. Case Study: “Patient 22” Choked on Sausage After Brain Injury – U.S. District Judge Shelly Dick In a November 2023 opinion, U.S. District Judge Shelly Dick wrote that Angola’s medical care had not significantly improved since she ruled in 2021 that it amounted to cruel and unusual punishment. Among the cases she cited to illustrate her conclusion was “Patient 22.” What happened to this inmate, she wrote, was “the most egregious example” of the prison’s substandard care and its practice of relying on inmate orderlies rather than trained professionals to provide medical care. The 60-year-old patient, who had previously suffered a traumatic brain injury, was transferred to Angola’s emergency medical unit and then to an outside hospital after he was kicked in the face by another inmate, according to a medical expert for the plaintiffs. The inmate returned to the prison, where he was sent to the medical ward for two and a half months, suffering repeated falls while there. Medical staff placed him in a “locked room with nothing but a mattress on the floor,” the judge wrote. A doctor who testified on behalf of the prison said putting a mattress on the floor was appropriate because of the inmate’s risk of falling. Although a speech therapist had recommended a diet of soft food because the inmate had trouble swallowing, the prison failed to provide one, the judge wrote. In January 2021, the patient choked on a piece of sausage and died. An inmate orderly administered CPR until emergency medical services arrived. In court filings and testimony, the state pointed to an apparent conflict in medical records regarding the patient’s recommended diet. A doctor who testified on behalf of the prison said the death was accidental, and he didn’t believe that it showed a violation of the standard of care. In 1994, the Justice Department reported that Angola inmates were punished for seeking medical care, with seriously ill patients placed in “isolation rooms.” Prison staff failed to “recognize, diagnose, treat, or monitor” inmates’ medical needs, including “serious chronic illnesses and dangerous infections and contagious diseases.” Two decades later, a federal judge wrote that Angola’s medical care has caused “unspeakable” harm and amounts to “abhorrent cruel and unusual punishment.” For years, Jeff Landry, Louisiana’s new governor, defended the quality of Angola’s medical care. When he was attorney general, a post he held from 2016 until January, he argued that inmates are entitled only to “adequate” medical care, which is what they got. During the pandemic, Landry opposed releasing elderly and medically vulnerable prisoners, warning that it could result in a “crime wave” more dangerous than the “potential public-health issue” in the state’s prisons. And now that Landry has moved to the governor’s mansion, the number of inmates who rely on the medical care in Louisiana’s prisons is likely to grow. Soon after Landry was sworn in, he called for a special legislative session on crime. Over nine days in February, lawmakers worked at a dizzying pace to overhaul the state’s criminal justice system. They passed a law that requires prisoners to serve at least 85% of their sentences before they can reduce their incarceration through good behavior. Another law ends parole for everyone but those who were sentenced to life for crimes they committed as juveniles. The “truth in sentencing” law will nearly double the number of people behind bars in Louisiana in six years, from about 28,000 to about 55,800, according to an estimate by James Austin of the JFA Institute. The Denver-based criminal justice nonprofit studies public policy regarding prison and jail populations, including the jail in New Orleans. Austin projects that the law will add an average of five years to each new prisoner’s incarceration, resulting in a growing number of older inmates who will further burden prisons’ medical systems. The share of inmates 50 and older already has risen substantially in the past decade, from about 18% in 2012 to about 25% in 2023, according to figures from the Department of Public Safety and Corrections. Although these laws aren’t retroactive and won’t affect Parker’s chance of release, they could be devastating for future inmates in his condition. Louisiana has three programs that allow for its sickest inmates to be released; two of them will be eliminated and inmates will be eligible for the third only after serving the vast majority of their sentences, according to state Rep. Debbie Villio, R-Kenner, who spearheaded the legislation. Absent additional resources, Austin said, a medical system that for decades has struggled to care for its most vulnerable will “only worsen.” He called what is happening in Louisiana “one of the most dramatic plans to increase prison population I’ve ever seen.” Jeff Landry, Louisiana’s new governor and formerly the state attorney general, has defended the quality of Angola’s medical care. (Matthew Hinton/AP) Villio said in an email that she disagreed with Austin’s projections. (The Landry administration didn’t respond to questions from Verite News and ProPublica.) The nonpartisan Legislative Fiscal Office, however, estimated that the state’s expenses are likely to rise because inmates will be held longer. All told, the bills Landry signed seem designed to ensure that “everyone will die in prison,” said Bruce Reilly, deputy director of Voice of the Experienced, a New Orleans nonprofit that advocates for the rights of the incarcerated. “More and more sentences of 30 to 60 years, which are not uncommon, will be death sentences,” he said. “And we do not all age gracefully or go quietly in our sleep.” “They Don’t Even Try to Pretend to Show Compassion” After a jury found Parker guilty in the 1999 murder of his girlfriend, Kawana Bernard, he was sentenced to life without parole and sent to Angola. The sprawling maximum security prison, which holds about 3,800 inmates on the site of a former slave plantation, was once known as “the bloodiest prison in America” because of rampant violence. That reputation remains. The Louisiana State Penitentiary at Angola (Kathleen Flynn) Still, it wasn’t until her paralyzed son was sent to the prison’s medical unit that Janice Parker truly feared for his life. In the years that he has been held there, at least 17 prisoners have died after receiving substandard health care, according to U.S. District Judge Shelly Dick, who ruled in 2021 that Angola’s medical care was unconstitutional and in November 2023 that the state had failed to significantly improve it. “If he stays there,” Janice Parker said, “he’s gonna die.” Though Parker’s movements are now limited to facial expressions and slight shifts of his head, he was once known as “Coyote” for his relentless style of play as a cornerback for the East Yard Raiders in the prison’s full-pads football league. After the team won the prison championship in 2009, he was chosen for Angola’s all-star team. They traveled to Elayn Hunt Correctional Center to compete against its best players. After Angola dominated most of the game, its coaches pulled their starters to prevent injury, Derrick Magee, a former teammate, said in an interview. Parker insisted on playing. Kentrell Parker, second from left, poses in 2010 with teammates from the East Yard Raiders in a photograph held by his mother. The players are holding championship belts from Angola’s Crunch Bowl in 2009, according to former teammate Derrick Magee. Parker was paralyzed in a game soon after. (Kathleen Flynn, special to ProPublica) Magee said the memory of what happened during that game continues to haunt him nearly 14 years later. The opposing team ran a short run play. As their fullback drove a few yards forward, Parker drilled him, driving his neck into the player’s torso. Nearly a dozen others piled on. The whistle blew. One by one, the players stood up. Parker, however, lay on the grass. “What’s going on, Coyote?” Magee asked. “Man, I can’t move,” Parker replied. He had suffered a traumatic spinal cord injury in his neck. Dr. Raman Singh, the medical director for the Department of Corrections at the time, summarized Parker’s condition in a letter a month after his injury: “He requires total assistance with all activities of daily living.” After about 19 months of treatment outside the prison, Parker was taken back to Angola and admitted to its hospital, which includes a 34-bed ward for prisoners who need long-term or hospice care, according to the Department of Corrections. Janice Parker has observed the conditions in the medical ward on her frequent visits, nearly every month for more than a decade. The smell of urine and feces permeates the infirmary. Tables and medical equipment are covered in dust and grime, she said. Patients, suffering from open wounds and sores, scream in pain throughout the day. On one visit, she said, clumps of her son’s hair had fallen out and the bare patches of his scalp were covered in scabs. He told her he hadn’t been bathed in weeks. Another time, she found him lying in his own feces, suffering from an infection after bacteria had “entered his blood from his stool,” according to the 2015 lawsuit filed by her son and other inmates, in which Angola’s medical care was ruled unconstitutional. Kentrell Parker’s sister, Keoka, said that during the many visits she has made to Angola, not once has she seen a nurse check on her brother or any other inmate. Instead, it’s the inmate orderlies — untrained men who in many cases have been convicted of violent crimes — who care for the patients. “The certified people — the people with degrees, the nurses — they don’t turn my brother over, they don’t feed him, they don’t wash his face, they don’t give him therapy or exercise him,” Keoka Parker said. “They don’t even try to pretend to show compassion.” The Department of Corrections didn’t respond to questions from Verite News and ProPublica about the complaints by Parker’s family; in documents filed in response to his lawsuit, it denied all allegations related to him. Like her mother, Keoka Parker said she lives in terror of a phone call from the prison informing her that her brother has died because of medical complications or neglect. Keoka Parker (Kathleen Flynn, special to ProPublica) For Lois Ratcliff, whose son spent several years in Angola’s hospital after an infection paralyzed him from the waist down, that fear was realized. Ratcliff said she visited her son, Farrell Sampier, at least every other weekend in the prison hospital between 2013 and 2019. She often sat and talked with Parker. Seeing them suffer needlessly left her so depressed, she said, that she contemplated suicide. Ratcliff often wondered whether the cruelty was the point. “I’ll never be able to get that out my head, the things I seen, and how they treat the people,” she said. During a 2018 visit, Ratcliff said, she found Parker lying in his bed, his face surrounded by flies. The nurses did nothing and refused to let her help him, she said. Unable to swat the flies as they buzzed about, Parker did the only thing he could to bring himself some relief: He ate them. Case Study: “Patient 38” Locked in an Isolation Room With a Serious Infection – U.S. District Judge Shelly Dick Dick, the federal judge, cited a medical expert’s conclusion that “Patient 38” had died because of delayed medical care as one example of Angola’s substandard care. This inmate, who had an artificial heart valve and suffered from diabetes, hypertension and chronic obstructive pulmonary disease, developed symptoms of a potentially life-threatening infection, Dick wrote. In response, Angola’s medical staff treated him for the flu, giving him Tylenol and an antiviral drug, and locked him in a room, a medical expert for the plaintiffs testified. The inmate’s condition worsened over the next three days, when his lab results showed signs of sepsis, a bacterial infection and kidney failure, Dick wrote. On the third morning, his vital signs indicated he had gone into shock, but there’s no record that a doctor provided care, according to medical experts for the plaintiffs. Based on his vital signs, the plaintiffs’ experts wrote, the patient “should have been sent to a hospital. Instead, he received no care.” About an hour later, the patient was found on the floor of his isolation room, the judge wrote. Staff tried to revive him, but he was pronounced dead at a local hospital after cardiorespiratory arrest stemming from pneumonia, the judge wrote. A medical expert hired by the state said the patient’s care met constitutional standards and that it was appropriate to treat him for flu rather than pneumonia. “The Court is dumbfounded to understand how treating these symptoms as flu can be justified without so much as a physical examination,” Dick wrote. In 2015, Parker and Sampier were among a dozen named plaintiffs in a class-action lawsuit against the Department of Corrections; the agency’s secretary, James LeBlanc; Angola’s warden; and the assistant warden in charge of medical care. The suit alleged that the prison’s medical care caused inmates to suffer serious harm, including the “exacerbation of existing conditions, permanent disability, disfigurement, and even death.” Dick ruled in favor of the plaintiffs in 2021. In a November 2023 opinion supporting that ruling, she concluded that the prison knew inmates were sick but failed to provide them with adequate treatment, worsening their conditions and in several cases leading to their deaths. That 100-page opinion confirms many of the allegations made by Parker’s family: untrained inmates doing the work of nurses, patients locked in isolation rooms, unsanitary conditions and a medical staff that routinely ignored patients’ needs. The judge’s ruling came too late for Ratcliff. In 2019, her 51-year-old son died at an outside hospital while in Angola’s custody. His autopsy indicated that he had suffered a stroke. The state has appealed Dick’s ruling; it went before the 5th U.S. Circuit Court of Appeals this month. Newly elected Louisiana Attorney General Liz Murrill, who was Landry’s top lawyer when he held that office, argued that prison administrators have made significant improvements, including the addition of air conditioning to several dorms, telemedicine and specialty clinics. “I believe that the judges should give us credit for what we have done to improve conditions,” Murrill said in court. She also pushed back against the very premise of the lawsuit, denying that medical care at the prison was ever lacking or unconstitutional. The state has argued that Dick’s ruling was based largely on a review by plaintiffs’ medical experts of the most difficult cases and that the judge didn’t consider whether problems stemmed from medical error or differences in medical judgment. “We never conceded there was a violation in the first place,” Murrill told judges. The Cost of Being Tough on Crime The legal fight over Angola’s health care system was part of a broader battle to improve conditions within Louisiana’s prisons and unseat the state as the per-capita incarceration capital of the country, if not the world. In 2017, two years after inmates filed suit, a bipartisan coalition of inmate advocates, law enforcement officials and politicians pushed through a package of bills to revamp the state’s criminal justice system and help inmates like Parker. That effort was hailed nationally and placed Louisiana at the forefront of a movement to combat mass incarceration. But it would be relatively short-lived. Landry would soon promise to roll back most of these changes as he campaigned for governor on a platform of fighting a post-pandemic spike in crime. Case Study: “Patient 29” Had 108-Degree Temperature, but Prison Staff Didn’t Try to Cool Him – U.S. District Judge Shelly Dick This 28-year-old inmate had requested help repeatedly but was never assessed by a medical provider, the judge wrote. In March 2020, the inmate called for help again, complaining of stomach and back pain. He was evaluated by an EMT, but there was no indication that he received any treatment. That afternoon, the man was found on the floor, foaming at the mouth with a temperature of 108.2 degrees — “obviously a heat stroke,” according to a medical expert who testified for the plaintiffs. Medical staff did not try to cool the inmate with ice, Dick wrote. Instead, they inserted a catheter in an apparent effort to test his urine for illicit drugs. An expert for the defense testified that there was no reason to administer ice. “You can only do so much when someone isn’t breathing and doesn’t have a heartbeat,” he said. “This was essentially a dead man.” That, Dick wrote, was the least of the failures. The larger problem, she wrote, is that the inmate’s calls for help were dismissed. The way this patient was treated, she wrote, showed “an attitude of general indifference.” In a January filing in federal appeals court, lawyers for the state wrote that prison medical staff use ice in heat stroke cases “when appropriate.” Even if the state were to concede that the patient should have been cooled with ice, lawyers argued, “This case would be at most a case of medical negligence.” In 2017, Department of Corrections officials went to the state Capitol to warn lawmakers that medical costs were taking up an exorbitant portion of their budget. LeBlanc, the corrections secretary, cited one chronically ill inmate who cost the agency more than $1 million a year. He told lawmakers that one of the best ways to tackle the problem was to reduce the prison population, in part by releasing terminally ill or bed-bound inmates. “I have inmates in Angola that are in fetal positions, who are paralyzed from the neck down, are in hospice,” LeBlanc said in a 2017 interview. “Their life is over, it’s done, they’re finished. Why do we need to keep them in prison? There’s no reason for that. They can spend their last few days with their family.” Lawmakers responded by dialing back some of the state’s more draconian penalties. They softened a “three strikes” sentencing law that put people in prison for life even for nonviolent offenses and created a medical furlough program that allowed bed-bound inmates and those unable to perform basic self-care to be released to a health care facility. All told, legislation enacted in 2017 resulted in a 26% decrease in the state’s prison population by the end of 2021 and nearly $153 million in savings by June 2022. While those changes saved money and freed up space in prisons, the programs to release infirm patients were flawed, said Dr. Anjali Niyogi, founder of the Formerly Incarcerated Transitions Clinic and co-author of a legislative task force report about those programs. The process was complicated, it was unclear how decisions were made and prison officials often overruled the opinion of medical professionals, she said. Case in point: Although Parker was initially sent to a medical facility after he was injured, the Department of Corrections brought him back to Angola. (Janice Parker has a copy of a letter from LeBlanc to Angola’s warden saying it was because Parker’s condition had changed, but her attorney was told years later that it had been because of an unspecified behavioral issue.) Since then, Parker has been repeatedly denied any kind of medical release, even though Angola’s medical director, unit warden and a mental health team have recommended it. In 2019, prison officials recommended that Kentrell Parker be approved for a medical furlough, which would allow him to serve the remainder of his sentence in a health care facility. Department of Public Safety and Corrections Secretary James LeBlanc declined to move Parker’s case forward to the state Committee on Parole, which has the final say. Parker’s family said LeBlanc has never explained his decision. (Obtained by Verite News and ProPublica. Highlighting by ProPublica.) The Department of Corrections declined to comment on Parker’s attempts to be released, saying any information would be contained in department documents provided by his family to Verite News and ProPublica. In 2022, state Sen. Royce Duplessis, D-New Orleans, tried to address shortcomings in the medical release programs. But by then, the political dynamics had shifted. Gov. John Bel Edwards, a moderate Democrat, was on his way out; Landry was taking high-profile stands against crime as he laid the groundwork for his gubernatorial campaign. Villio, a Landry ally, led the charge against Duplessis’ bill. When advocates contended that even prisoners convicted of violent crimes should be allowed to die with dignity, she responded: “Did the victims of murder have an opportunity to die with dignity? Were the victims of rape dignified in that act?” She took a similar message into last month’s legislative session as the new chair of the powerful House Committee on the Administration of Criminal Justice. Her bill requiring inmates to serve at least 85% of their sentences represents a dramatic change; today, inmates serve an average of 40%, largely because of credit earned for good behavior, said Austin, the consultant who projected how Villio’s bill would affect the state’s prison population. But Villio told fellow lawmakers that her bills raising the minimum time served and ending parole wouldn’t increase the prison population or spending. She reasoned that because the bills would create certainty in sentencing, they would spur judges to issue shorter sentences. “There is no intent to ramp up the prison population,” she said in a February legislative committee hearing. The Legislative Fiscal Office, however, concluded otherwise. The bill ending parole could add between $5.7 million and $14.2 million to the Department of Corrections’ costs, legislative staffers wrote. The truth in sentencing bill would “likely result in a significant increase” in spending, they wrote — at least $5 million in the first full fiscal year, based on Department of Corrections figures. The department estimated those costs would increase every month. Landry’s current budget proposal would increase funding for the Corrections Department by about $53 million, or 7.4%, but it does not project a significant expansion in the incarcerated population, nor would it increase health care funding. Tennessee attorney David Louis Raybin, who helped draft a truth in sentencing law there in 1979, said he knows what Louisiana is in for. Tennessee’s law was repealed six years later, after a string of riots in the state’s overcrowded prisons. But in 2022, Tennessee lawmakers adopted yet another truth in sentencing law over Raybin’s objections. “It takes about three years for this to have its effect. But once it does, it hits with a vengeance,” said Raybin, a self-described conservative Democrat who previously worked as a prosecutor and helped draft the state’s death penalty statute. “You guys are going to get whacked down there. Your population is going to go through the ceiling.” Three days after the legislative session ended, Janice Parker visited her son. He was in severe pain from a distended stomach and a blockage in his catheter. She said the prison’s medical staff didn’t answer her questions about what was wrong and refused to send him to a hospital. As she sat by her son’s bedside and held his limp hand, she didn’t have the heart to tell him that their fears of what would happen if Landry became governor had come true: Louisiana was returning to its punitive roots. Though her son still is technically eligible for some sort of medical release, she worried that after 14 years of suffering and disappointment, news of the changes would sever his last thread of hope. Janice Parker holds a photo of herself with her son that was taken as she visited him at Angola. (Kathleen Flynn, special to ProPublica) Case study document illustrations by ProPublica.
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by Vernal Coleman ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. Twenty-five years ago, Scott King, then mayor of Gary, Indiana, spoke solemnly as he described a new strategy the city was taking to deal with the flow of illegally purchased guns fueling violent crime there. Undercover Gary police officers had fanned out across the area for Operation Hollowpoint, successfully purchasing guns and ammunition at federally licensed firearm retailers despite representing themselves as suspicious buyers. King presented surveillance footage in an 18-minute video produced by the city. Inside one pawn shop, a bespectacled clerk and two undercover police officers are shown discussing a 9 mm pistol. After the male officer admitted he did not have the permit required to buy the gun, the female officer accompanying him told the clerk she did. The clerk then suggested she buy the gun on her partner’s behalf in violation of federal gun restrictions. “Might as well put it in your name then so I don’t have to make a call,” the clerk responded. “The feds are constantly screwing with people.” The footage, which documented four suspicious purchases at different retailers selling guns, showed “how easy juveniles, felons and other prohibited purchasers can acquire guns from legitimate gun dealers through the use of a straw purchaser,” King said in the video. The stings formed the basis of the city’s historic lawsuit seeking to hold local gun retailers and major gun manufacturers, such as Smith & Wesson, Glock and others, responsible for illegal sales like those uncovered in the investigation. As part of the suit, the city sought monetary damages and changes in industry practices. Relentless legislative and legal efforts across the country have eliminated a flurry of lawsuits initiated by cities against the industry two decades ago. A bill approved by the Indiana legislature and signed into law this month by Gov. Eric Holcomb may be the final blow to Gary’s suit, the last one standing from that original group of cases. But the problem of illicit gun sales outlined by King and detailed in that grainy footage remains and continues to contribute to violence in northwest Indiana, nearby Chicago and beyond. Scott King, former mayor of Gary, presented the Operation Hollowpoint video 25 years ago. (Sarahbeth Maney/ProPublica) Over the years, Gary’s lawyers have sought to keep the suit going by arguing that negligence plagues the firearms industry, not just in the city but across the region, creating an ongoing public nuisance. To emphasize that point in court filings, they’ve included long lists of federal indictments of gun traffickers and their ties to illegal purchases at northwest Indiana retailers. Combing through the suit’s voluminous records, ProPublica found and then analyzed over 100 separate criminal cases involving straw sales — transactions where suspects participated in schemes to buy guns from federally licensed retailers and resell them to people barred by law from purchasing guns themselves. The federal gun cases represent a small but illustrative sampling of the nation’s illegal gun trade, whose contours are well known to law enforcement but shrouded in mystery to the public because of industry-backed laws that keep a tight lid on data involving illicit gun sales. Some of the cases examined by ProPublica involve just one transaction for a single firearm. Others are part of elaborate and organized schemes, where prolific traffickers use others with clean records to purchase multiple guns from one retailer, then head to the next gun shop and repeat the process over and over again. Most can be tied back to at least one northwest Indiana gun retailer. One of the cases involves three guns purchased in 2020 that ended up in the hands of a wanted fugitive. He later turned one of those pistols on two police officers in Wisconsin, seriously injuring both. “I knew that at some point I may die that night,” one officer later testified. But just as those examples showcase the scope of the straw sale problem in the United States, the vigorous effort by the firearms industry to quash the suit shows its commitment to the push back against stepped-up regulation and legal threats. The defendants have countered Gary’s claims at every turn, arguing that manufacturers have no part in the illegal gun trade and denying responsibility for criminal acts committed by buyers. In a 2000 joint response to the city’s allegations, attorneys for the defendants wrote that after manufacturers sell firearms to licensed retailers, they have no control over “the subsequent negligent or unlawful transfer, possession, ‘availability’ or use of firearms.” In 2021, after years of legal wrangling, the Gary suit reached a crucial stage. The Lake County, Indiana, judge overseeing it ordered the sides to finalize agreements for turning over thousands of pages of internal records as part of a legal process known as discovery. Gary’s attorneys have for years sought those documents as they try to prove that manufacturers are aware of the straw sales occurring at the Indiana retailers they supply. But the discovery process might never be completed, now that the Indiana legislature has passed a bill making the Gary lawsuit and any like it illegal. The intent of legislators was clear: The law was made retroactive to Aug. 27, 1999 — three days before Gary filed its lawsuit. Speaking of recent legislation that may be the final blow to Gary’s lawsuit over illegal gun sales, Mayor Eddie Melton said, “We just want that fair day in court.” (Sarahbeth Maney/ProPublica) The legislative maneuver, and explanations for it, have frustrated the current mayor of Gary, Eddie Melton. Some proponents of the bill suggested that for as long as the lawsuit was allowed to continue, the firearms industry would pass over Indiana to do business in other states. “I’ve looked at that as a slap in the face in terms of the law, the lives that have been lost and the reason that the city has been fighting this fight for so long,” he said in an interview. “We just want that fair day in court.” In an excerpt from the Operation Hollowpoint video, surveillance footage shows a gun store clerk allegedly completing a straw purchase to an undercover Gary police officer. Watch video ➜ In February, Melton arrived at the state Capitol with the political fight over the gun industry bill in full swing. The legislation targeted the Gary lawsuit directly by restricting the power to bring such action to the Indiana attorney general. The House had passed its version just days before, and the Senate began its deliberations. Melton, himself a former state senator, strode to a podium inside a meeting room at the Statehouse and made his pitch. “I’m asking you to think about what kind of precedent this will set,” he said. “Local governments have the right to fight back against bad actors. What message will this send across our state and nation if Indiana were to pass a bill that allows the state to inject itself in an active lawsuit and effectively eliminate this right?” Aaron Freeman, a Republican and one of the bill’s chief backers, was unmoved. The power of such legal action should, as the bill dictates, rest in the hands of the state’s attorney general, he said. “This one is out of bounds,” he said of Gary’s lawsuit. “It’s a 25-year-old situation. There’s other municipalities that could do this, and I think only the state of Indiana should.” The Senate eventually passed the bill by a vote of 33 to 15, along party lines. More than two decades ago, when its suit was filed, Gary joined a wave of American cities that included Detroit and Chicago seeking solutions to gun violence problems through legal action. Under pressure, the firearms industry then turned to its political allies for relief. In 2003, Congress passed a law known as the Tiahrt Amendment, which prevents the Bureau of Alcohol, Tobacco, Firearms and Explosives from publicly releasing information identifying the retailers who originally sold guns confiscated by police during criminal investigations. Two years later, Congress passed the Protection of Lawful Commerce in Arms Act, which radically altered the nation’s relationship with guns. It gave manufacturers and retailers broad protections against civil litigation. Following passage of the act, lawsuits against the industry began to crumble. In 2015, the Indiana legislature passed its own law granting additional protections to firearm manufacturers, dealers and retailers. After then-Gov. Mike Pence signed the bill into law, defendants in the Gary suit all moved to have the case thrown out. But an appeals court ruled that the city’s suit could proceed via a narrow exception in the law. The straw sales documented by the city provided sufficient basis for a nuisance lawsuit, the court ruled. The reprieve freed Gary to continue pursuing financial damages for the unlawful sales and to make a case that manufacturers had turned a blind eye to the deadly problem. Since then, Gary’s attorneys have sought tightly guarded industry documents, including any internal studies or reports monitoring how guns are used or if they’re involved in shootings and plans for how products are marketed. In September 2021, the case reached a milestone that similar lawsuits had not, as the presiding judge set a final date to complete the discovery phase. With the passage of the bill, signed into law on March 15 by Holcomb, attorneys for the city expect that process to come to a standstill. King in 1999 describes straw purchases uncovered by police stings at local gun retailers in the Operation Hollowpoint video. Watch video ➜ King, the former mayor, no longer remembers even making the video on Operation Hollowpoint, but he still recalls the immediate pushback from the industry and Indiana politicians. To him, the latest effort to kill the suit is a testament to the influence of the firearms industry, which he said has for years pushed Indiana’s lawmakers toward “meddling in the operation of local government.” “I don’t think there’s too many legislators whose first thought after jumping out of bed in the morning is: ‘What can I do to make it easier for more people to get guns?’” he said. “I think their motivation in many circumstances is from who’s lobbying, and unfortunately those lobbyists have proven more effective than lobbies on behalf of local government, people in cities and towns throughout the state, that are the first line that have to deal with the reality of this violence.” Financial disclosure records reveal that the National Shooting Sports Foundation, which conducts political lobbying on behalf of the firearms industry, began ramping up its work at the state legislature last year. The group spent around $143,000 on lobbying efforts in 2023, a huge uptick from previous years. The bill aimed at killing Gary’s lawsuit was authored by Rep. Chris Jeter, a Republican who was an attorney at the law firm that handled lobbying for the NSSF until 2015. Jeter said no one at the law firm approached him about the measure. The bill had another backer in Attorney General Todd Rokita, who once it went into effect became the only official in the state with the power to sue the gun industry. As the bill began to wind its way through the Indiana Statehouse in January, Rokita, a champion of gun ownership rights, was in Las Vegas for an NSSF trade show. Speaking in an on-camera interview with one of the group’s top officials, Rokita made clear he has little intention of ever filing a suit like the one out of Gary. “That’s not gonna happen on my watch,” he said. Surveillance footage shows a display case inside a Gary-area gun shop. Watch video ➜ The gun cases cited in the Gary suit and examined by ProPublica provide a chilling tour of illegal activity and crime in the region and beyond. Take for instance, the case of Nathanael Benton, who was on the run in 2020 when he fired on police officers in Wisconsin. He had already shot a man in Fargo, North Dakota, in an argument over money, as he’d later admit during his trial, and had gotten rid of the gun he used in that shooting. Arriving in Indiana with police on his tail, Benton decided to obtain another one. As a convicted felon, Benton couldn’t buy a gun for himself from a licensed dealer. So, after fleeing to Indiana to lay low, he got a friend’s estranged girlfriend to make the purchases. Surveillance video taken from a now-shuttered gun retailer in Warsaw, Indiana, shows Benton’s friend appearing to steer the woman toward particular firearms to purchase. Later, the pair approached a car with two handguns — a Taurus .380 and Smith & Wesson .40 — and then handed the firearms through the car’s rear window to Benton. On the required federal form asking if she was purchasing the guns for herself, the woman checked “yes,” court records state. That same day, Benton and his accomplices traveled to ADT Firearms, a tiny gun shop in Syracuse, Indiana, run out of the basement of the owner’s home. Anthony Tilson, the owner, told ProPublica that he remembered showing a man and a woman several guns before they finally settled on a Smith & Wesson 9 mm pistol. Watching the two as they browsed, Tilson said, he felt uneasy. But the woman was familiar, a previous customer, Tilson said. And so he went through with the sale. A Smith & Wesson 9 mm pistol illegally purchased at ADT Firearms in Syracuse, Indiana, was later recovered near a Holiday Inn Express in Delafield, Wisconsin, where two police officers were shot. ADT’s owner told ProPublica: “We cannot control what somebody else does.” (Graphic by Lucas Waldron/ProPublica. Photography by Sarahbeth Maney/ProPublica.) Two days later, outside a hotel in Delafield, Wisconsin, two police officers detained Benton as part of an investigation into a hit-and-run accident. As one of the officers frisked him, Benton pulled the Smith & Wesson .40 from his waistband and began firing, according to court testimony and other records. Bullets hit one officer in the pelvis. The other officer was struck three times — two bullets hitting his back, while another struck him in the pelvis and pierced his abdomen, causing severe internal damage that forced him to undergo four separate surgeries. At Benton’s trial, the officer testified that the bulletproof vest stopped two of the bullets that struck him, saving him from additional injuries. Both men have left law enforcement. Benton fled the hotel but was captured at 11 on the morning following the shooting, eight hours from when officers first confronted him, following a massive police search. He was later tried and convicted on multiple charges, including attempted murder and reckless use of a dangerous weapon. Tilson found out about the Wisconsin shooting from a newspaper article. The 9 mm Smith & Wesson pistol Benton’s friends had purchased at ADT had been recovered at the scene. “I couldn’t believe it,” Tilson said. Police eventually arrested the Indiana woman Benton paid to buy guns for him. She was found guilty of one count of providing false information during the purchase of a firearm, and after a year in federal prison she was released for time served. Tilson said that if given a second chance he would have trusted his instincts and rejected the sale. But to Tilson, retailers like himself should not be held liable for straw sales. “We cannot control what somebody else does,” he said. Two officers who were shot in Delafield, Wisconsin, first image, with a gun purchased in Syracuse, Indiana, second image, have left law enforcement. (Sarahbeth Maney/ProPublica) The Bureau of Alcohol, Tobacco, Firearms and Explosives has identified straw purchases as among the most common ways in which guns fall into the wrong hands across the country. ProPublica’s analysis of straw-purchase cases cited in the Gary suit found that guns obtained unlawfully have been linked to crimes and mayhem throughout the Midwest. Andrew Thompson, for example, had a clean record, and that made the Fort Wayne, Indiana, resident an ideal middle man for straw purchases. Thompson bought at least 20 guns between 2017 and 2020, several of which were later recovered amid crimes in Chicago, Peoria, Illinois, and as far away as Pennsylvania and Missouri, according to court records. One gun purchased by Thompson was recovered by Kansas City police officers from a suspect who held them at bay in an armed standoff. Court records show that in at least one case, Thompson, who a federal judge would later sentence to just over five years in prison, offered to include incendiary ammunition as part of a sale to an informant. Upon impact, the bullet would explode into a ball of “burning magnesium that burns so hot it goes right through bone like butter and it’s burning at up to 3,000 degrees so it can LITERALLY SMOKE SOMEONE,” he wrote to one customer. The Operation Hollowpoint video shows a collection of guns recovered by Gary police. Watch video ➜ Nearly all of the manufacturers and retailers sued by Gary already have moved to dismiss the case, given the new legislation, leaving the suit’s proponents struggling to determine a way forward. Even if the case stays alive through a potentially lengthy appeal, the discovery process will once again be on hold. Attorney Philip Bangle of the nonprofit Brady Center to Prevent Gun Violence, which represents the city in the suit, is just as frustrated as Melton by the legislature’s action. “This is not about the merits of Gary’s case, which have been found valid by the courts no less than three times on appeal,” he said. In passing the bill, he said, the legislature invited “any person or corporation with ample resources or special interest” to seek legislative intervention to fend off a legal threat. Bangle said the Brady Center plans to appeal if Gary’s lawsuit is dismissed. But Melton would have to sign off and is not yet ready to commit. Melton said that he needs to weigh what’s in the best interests of the city, along with counsel of the city’s attorneys, and that he would wait to decide until the courts rule. Meanwhile, across the border, Chicago continues to pursue remedies to gun violence through the courts. Last week, the city filed a lawsuit against gun-maker Glock over the company’s alleged refusal to alter the design of pistols the city claims are being cheaply and easily converted into “machine guns.” Company officials have not responded to requests for comment. A Smith & Wesson 9 mm handgun illegally purchased at Westforth Sports in Gary, Indiana, was later recovered by police during a traffic stop in Chicago. (Graphic by Lucas Waldron, ProPublica. Photography by Sarahbeth Maney/ProPublica.) The move follows efforts by the city to revive its lawsuit against Indiana gun retailer Westforth Sports. Owned and operated by the Westforth family for decades, the now-shuttered Gary retailer was the source of hundreds of guns recovered amid investigations by Chicago police. Between 2011 and 2021, federal authorities indicted 53 people on charges related to illegal sales made at the shop, according to a filing in the original suit, which was dismissed by a judge in May 2023. The city appealed the decision later that year. Timothy Rudd, attorney for Earl Westforth, the now-retired owner of Westforth Sports, said the court “properly dismissed the City of Chicago’s claims against Westforth last spring, and we are confident that the appellate court will uphold that decision.” He declined to comment on the Gary lawsuit. Westforth was among the stores originally sued by the city and reached an undisclosed settlement. Nonetheless, Gary’s attorneys have continued to seek records from Westforth about its sales history. The now-closed Westforth Sports gun shop, first image, was the source of hundreds of guns recovered amid investigations by police in Chicago, second image. (Sarahbeth Maney/ProPublica) Amid these prolonged court battles, police and prosecutors remain as busy as ever dealing with the aftermath of straw sales occurring in the region. On Feb. 22, as the Indiana Senate had begun its deliberation on the bill barring Gary’s suit, a federal judge sentenced a 25-year-old former school custodian to 18 months in federal prison for charges related to straw purchases. Federal prosecutors accused him of buying at least 19 handguns illegally from Indiana gun retailers over the course of a year. Most of those guns have been recovered. Five remain missing. Do You Have a Tip for ProPublica? Help Us Do Journalism. Tony Cook of IndyStar contributed reporting.
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by Anna Clark ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. A bill moving through the Michigan House of Representatives would fix flaws in a 7-year-old compensation fund that the state set up to help wrongfully convicted people rebuild their lives. Sponsored by Rep. Joey Andrews, a Democrat, along with 14 other Democrats, the bill would be the first substantive reform of the Wrongful Imprisonment Compensation Act’s eligibility requirements. If it becomes law, many people who would otherwise be denied compensation would become eligible for relief. “This is going to be huge for a lot of people,” said Kenneth Nixon, co-founder and president of the nonprofit Organization of Exonerees. He spent nearly 16 years in prison before his conviction was vacated. WICA, passed in 2016, was intended as a lifeline for people who experienced extreme injustice by offering $50,000 for each year of wrongful imprisonment. But, as a ProPublica investigation detailed in January, the bipartisan law’s narrow requirements have resulted in delays in compensation, partial settlements or even complete denials. Only people whose cases are overturned based on “clear and convincing” new evidence that they weren’t a perpetrator or an accomplice have been eligible for WICA compensation, a higher standard of proof than for other civil claims. This has meant that some former prisoners — for instance, those whose convictions were overturned for insufficient evidence — can be left out. In Charles Perry’s case, which ProPublica highlighted, judges acknowledged that there was new evidence of innocence, but because his conviction was officially overturned due to prosecutorial misconduct and ineffective counsel, he got nothing. Michigan has had 173 wrongful convictions in state courts since 1989, the fifth-most in the country, according to the National Registry of Exonerations. After an average of nearly 11 years in prison, many of these individuals are released with no home, no job prospects, no transportation and no resources to navigate trauma. For years, advocates, a state commission and even some state Supreme Court justices have urged the Legislature to revisit the law. “I don’t like administering legal rules that I can’t explain to the people they impact,” wrote one justice in a concurring statement in Perry’s case. “Please fix it, legislators.” On several key matters, the new bill proposes doing so. Significantly, it would change the standard of proof for former inmates to a “preponderance” of evidence showing they were not the perpetrator or an accomplice, instead of “clear and convincing” evidence, which is considered more daunting. In testimony to the House Criminal Justice Committee in March, where he serves as majority vice chair, Andrews said the higher standard is usually reserved for when the government takes away a person’s rights. It’s “a very unusual burden of proof to be using in a civil matter,” he said, and it works against “the purpose of compensating the innocent,” especially in old cases when evidence has deteriorated and witnesses are no longer available. The bill would also allow certain exceptions to the new evidence requirement. An individual would also qualify for relief if there was insufficient evidence to support their conviction, or if new evidence was available but the court reversed or vacated their conviction for other reasons. Wolf Mueller, an attorney who said he represented at least 20 WICA claims, said the changes would make a big difference to a law he described as poorly written. “If you shouldn’t have been tried in the first place, because there was insufficient existing evidence to convict you, then you should be compensated,” Mueller said. “You are just as much wrongfully convicted as somebody else who was lucky enough to find new evidence.” At the committee hearing, Robyn Frankel, an assistant attorney general who directs the office’s Conviction Integrity Unit and heads the section responding to WICA claims, testified for the bill. The proposed changes, she said, would “remedy a number of difficulties that we were experiencing in the application of the law.” For example, Frankel said, “removing the requirement that new evidence be the reason for the dismissal was prompted by our realization that more often than not, specific explanations are not provided at the time a case is dismissed.” The bill would also make a number of other reforms. Among them: Pretrial detention would count as time spent wrongfully imprisoned, and people pardoned by the governor would be eligible to file a claim. An analysis by the House Fiscal Agency said the bill would result in “an indeterminate, but likely marginal annual increase in claims and awards” for compensation. Average yearly compensation under WICA over the last four fiscal years has totaled about $9.8 million, it said. Two weeks ago, the House Criminal Justice Committee voted to favorably report a substitute version of the bill, tweaking it to account for the pardon process. Eight members supported the recommendation, three opposed and two abstained. Rep. Graham Filler, the committee’s minority vice chair, abstained after asking at the hearing about why there’d be a different standard of proof for a WICA claim than for a conviction. To that, Marla Mitchell-Cichon, counsel to the Innocence Project at Thomas M. Cooley Law School, said the difference is that a WICA claim is not a criminal matter. A full House vote is anticipated in April or May, a legislative aide to Andrews said in an email. As the bill moves forward, Andrews said in an interview with ProPublica that he hopes more colleagues sign on, including Republicans. Next step after the House would be the state Senate, which also is led by Democrats. If the bill becomes law, wrongfully convicted people whose cases were overturned based on insufficient evidence would have an 18-month window to show they are eligible for compensation under the new reforms. However, people who were ineligible for reasons other than insufficient evidence would still not qualify, and people whose claims were already denied, or ended in settlements, would not be eligible to file again. Kenneth Nixon, who received partial compensation after his conviction was overturned, stands outside of a property he purchased with the goal of opening an adult foster care home there. The WICA settlement has helped, he said. “It’s a project to help people. I want to be helpful wherever I can to society,” said Nixon. “The cash has helped with getting stuff done.” (Sarahbeth Maney/ProPublica) Nixon, on behalf of the Organization of Exonerees, is pushing for the bill to go still further. In a March 11 letter to the committee, he argued that past claimants should be allowed to benefit from the reforms. “Fairness requires that the positive changes to WICA benefit all exonerees, not just those with claims in the future,” he wrote. In 2022, Nixon received a settlement for less than he anticipated from WICA. In the letter, Nixon also expressed concern that innocent people whose cases were overturned for reasons other than insufficient or new evidence — such as improper jury instruction or ineffective counsel — could still be excluded. And, he said, the compensation amount should be adjusted yearly for inflation, as the $50,000 allotted when WICA passed in 2016 is worth less in 2024. (Had the original amount kept up with inflation, it would now be about $64,700 per year.) It’s important to get WICA right, Mueller said. The compensation “is not just life-changing from a monetary standpoint; it’s a dignity standpoint,” he said. “Somebody recognized that they had been wronged and wanted to make it right.”
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by Vianna Davila, Melissa Sanchez, Liz Sharp and Myron Avant ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. ProPublica is committed to increasing the diversity of our workplace as well as the journalism community more broadly, and each year we publish a report on those efforts. This is the report for 2024; here are all our past reports. Our Commitment We believe that it is imperative to staff our newsroom and business operations with people from a broad range of backgrounds, ages and perspectives. We are committed to recruiting and retaining people from communities that have long been underrepresented, in journalism broadly and in investigative journalism especially. That includes African Americans, Latinos, other people of color, women, LGBTQ people and people with disabilities. ProPublica has continued to expand, growing from 172 full-time employees at the start of 2023 to 186 in 2024, due in part to the creation of our Northwest team and additions to our development, audience and visual teams. Our diversity efforts last year were wide-ranging, with the launch of an investigative editor training program that is open to journalists across the U.S., a large presence at journalism affinity conferences and a webinar for former conference stipend recipients and other early career journalists who have participated in previous ProPublica programs. We also continued to formalize some of our formerly staff-run, volunteer diversity efforts, built partnerships with outside journalism organizations and looked for ways to improve the internal culture and processes for all ProPublicans. Our Diversity Committee comprises more than 50 ProPublicans who volunteer their time to work on initiatives that are pitched and run by the staff. The current co-chairs are Vianna Davila, Melissa Sanchez and Liz Sharp. Breakdown of Our Staff As with last year, we tracked candidates through the application and interview process. Out of 21 positions filled in 2023, 50% of the candidates we interviewed identified as women and 36% identified as being part of a racial/ethnic group other than solely non-Hispanic white. About 67% of the people we hired identified as women. However, 29% of those people we hired in 2023 identified as being part of a racial/ethnic group other than solely non-Hispanic white — a lower percentage than ProPublica had hired in previous years. "Recruiting and retaining a diverse staff is one of ProPublica's core principles,” said ProPublica editor-in-chief Stephen Engelberg, responding to the hiring numbers. “We are proud of the progress we've made, but we agree that there's more to be done.” This year, Engelberg said, ProPublica added a full-time talent acquisition manager “to make sure our job searches reach the broadest possible group of applicants." At the start of 2024, the percentage of all ProPublica staff members who identified as solely non-Hispanic white was 62% — slightly higher than in previous years. This percentage was the same for editorial positions. For the sixth year in a row, more women than men work at ProPublica. About 2% of our staff identify as nonbinary or transgender. In editorial positions, women represented 51% of the staff. Since 2022, we have collected demographic information about our board of directors. Half of the 14 people on the board identified as women, the same as last year. About 64% of the directors identified as non-Hispanic white, compared to 71% last year. As we’ve said since 2015, part of our commitment to diversity means being transparent about our own numbers. Here’s how our staff breaks down. (Please note that the data is based on employees’ self-reported information. Recognizing that some people may identify as more than one race but not identify as a person of color, in 2022 we began stating numbers in terms of people who “solely identify as non-Hispanic white.” We hope this will provide more specificity and accuracy. The employee information is as of Jan. 1 of each year. Managers are defined as staff members who supervise other people, and that group does not include all editors. Percentages may not add up to 100 because of rounding. Fellows, time-limited employees and part-time employees are not included in this analysis.) Race and Ethnicity: All of ProPublica Note: Fellows, time-limited employees and part-time employees are not included in this analysis. Race and Ethnicity: Editorial Note: Fellows, time-limited employees and part-time employees are not included in this analysis. Race and Ethnicity: Managers Note: Fellows, time-limited employees and part-time employees are not included in this analysis. Gender: All of ProPublica Note: Fellows, time-limited employees and part-time employees are not included in this analysis. Gender: Editorial Note: Fellows, time-limited employees and part-time employees are not included in this analysis. Gender: Managers Note: Fellows, time-limited employees and part-time employees are not included in this analysis. New Initiatives Investigative editor training: ProPublica started an Investigative Editor Training Program in 2023 for journalists who want to learn how to manage, edit and elevate investigative projects that expose harm and create impact. The curriculum for the yearlong program was designed by ProPublica chief of correspondents Ginger Thompson and deputy managing editor Alexandra Zayas to increase diversity in the next generation of investigative editors. We did a test-run for the program for nine ProPublica staffers. Then we refined the training and invited journalists from other organizations to apply. More than 150 reporters and editors from news organizations across the country applied. We selected 11 people to attend a weeklong training at our New York office, where they heard from ProPublica editors on different aspects of the craft, from story selection and memos to managing the reporting and digging into the first draft. After that, participants were paired with ProPublica senior staff as mentors and received additional virtual training for the remainder of the year. We are offering this training again this year for external participants. Alumni virtual meetup: After a hiatus in 2022, ProPublica staff hosted a career-building webinar for “alumni” of our various external programs, including Emerging Reporters, the Data Institute and our conference stipends. Irena Hwang, Maya Miller and Ellis Simani volunteered their time to organize this event and surveyed alumni about what kinds of skills they wanted to build. The virtual event, held in September, included a panel on “building your investigative career” featuring Ginger Thompson, Zahira Torres, Lulu Ramadan and Kavitha Surana. That was followed by breakout rooms on workshopping a pitch, managing up, specialty reporting and becoming an editor. More than 50 early-to-mid-career journalists attended the event, and more than a half-dozen ProPublicans lent their expertise as breakout-room moderators. Our goal is to continue to build on the success of this program in 2024 and provide another opportunity for community members to come together. Our Ongoing Efforts ProPublica thinks about its efforts in the following ways: building the pipeline (for us and for all of investigative journalism); recruiting talent and improving our hiring process; and inclusion and retention. Building the Pipeline Conference stipends: ProPublica previously offered stipends to help student journalists attend conferences. Last year we changed this program to instead partner with Investigative Reporters & Editors (IRE) and sponsor five journalists to attend the annual IRE convention. IRE’s diversity scholarship supports journalists, students and educators from diverse backgrounds, including people of color, those who identify as part of the LGBTQ+ community and/or people with disabilities. We also sponsored a Journalists of Color mixer at the conference, which was attended by more than 50 people. Emerging Reporters Program: The program provides financial assistance and mentorship to five students for whom investigative journalism might otherwise be inaccessible so they can pursue early career opportunities in the field. The program includes a $9,000 stipend, virtual programming and an all-expenses paid trip to an IRE conference on computer assisted reporting. This is the program’s ninth year, and it is coordinated by Talia Buford. Check out our most recent class and find out more about the program. Data Institute: In 2016, ProPublica journalists founded The Data Institute, a workshop for journalists on how to use data, design and code. ProPublica eventually started working with Open News, which coordinates student and instructor participation and provides support for project management and event planning. The Ida B. Wells Society for Investigative Reporting and the Center for Journalism & Democracy now organize this in-person event. Last year a half-dozen current and former ProPublicans served as trainers at the institute, which is focused on empowering people with data skills they can bring back to their own newsrooms. ProPublica staffers will continue to serve as trainers at the institute this year. Recruiting and Hiring Affinity conferences: Last summer, ProPublica newsroom staff and senior leadership partnered with The Marshall Project and The Trace at the country’s three largest affinity journalism conferences. At the Asian American Journalists Association conference, the three organizations hosted a panel about paths into nonprofit news that also included participation from a staffer at the Center for Public Integrity. The panel was followed by a beverage lounge, where anyone could drop by for refreshments. The organizations hosted a reception at the National Association of Black Journalists conference, put on through the convention’s Investigative Task Force, that included journalists from The Texas Tribune and The Intercept. ProPublica staff also participated in three conference sessions focused on investigative reporting. At the National Association of Hispanic Journalists conference, the three journalism organizations hosted a booth along with The Texas Tribune, The Intercept and CPI. This work was led by ProPublica staffers Maya Miller, Irena Hwang and Ellis Simani. Going forward, ProPublica’s talent department will assume responsibility for this work. Salary equity and transparency: ProPublica management regularly analyzes salaries in job categories where there are at least four employees and, when necessary, adjusts those salaries to ensure equity by race and gender in each job and location group, while taking into account years of experience. This analysis started in 2021. We do this because we want to try to eliminate the effects of any unconscious bias in setting salaries. In addition, since the fall of 2022, ProPublica has published salary ranges for all posted job openings, regardless of geography. Rooney Rule: We require that hiring managers interview at least one person who does not self-identify as solely non-Hispanic white. In addition, every application must be read by at least two people. Freelancer guide: In 2022, ProPublica published a guide for freelancers interested in pitching an investigation to ProPublica. We designed the guide to formalize the pitch process and level the playing field for how freelance projects are presented and considered. Submissions will be reviewed by editors on a rotating basis. ProPublica will respond to anyone who completes the form, even if their proposal is not accepted. LRN candidate outreach: Editors with ProPublica’s Local Reporting Network continued to do personalized recruiting and offered office hours so local journalists could discuss their accountability work with a member of the team. LRN editors were also present at affinity journalism conferences, where they met with interested applicants in an effort to help them with the project-development and application process. Inclusion and Retention Welcoming new hires and focusing on internal culture: Our inclusion subcommittee includes about 30 ProPublicans who meet monthly to consider ways to make the newsroom more inclusive and equitable. Duaa Eldeib chairs this subcommittee. Some of the issues the group has been tackling include ways to improve ProPublica’s fact-checking process and build community, particularly for employees who work remotely. The subcommittee launched an internal story club that meets regularly to discuss particularly enjoyable stories, podcasts or books. Sensitivity subcommittee: Led by Colleen Barry and Andrea Wise, this group serves as a resource for editors and reporters to tap the collective brain trust of our newsroom when working on particularly sensitive stories about suicide, sexual abuse, child abuse, racial trauma and more. The committee maintains a Slack channel where anyone can share resources and where editors and reporters can solicit feedback on drafts or ask questions on how best to report on sensitive subjects. When a “sensitivity read” or the discussions during the editing and production of a story are particularly instructive, the subcommittee has shared those experiences at diversity committee meetings so any lessons can be more broadly applied. ProPublica Peer Partnership Program: This is an internal program organized by Jodi Cohen and Lisa Song that matches ProPublicans with a mentor or peer partner to meet each other, develop new skills and have someone to turn to for help navigating workplace or career questions. Last year more than 50 ProPublicans participated in this program, which was started in 2018. Unconscious bias training: Since 2021, ProPublica has contracted with Paradigm Reach to provide ongoing diversity, equity and inclusion training for staff. The training is required of all new managers. Diversity Committee office hours: We have continued to offer a casual virtual hangout twice a month where ProPublicans can chat with the Diversity Committee co-chairs to brainstorm about diversity, equity and inclusion initiatives, ask questions about ProPublica’s ongoing DEI programs or chat about diversity-related concerns in a more intimate setting outside of the monthly committee meetings. Interested in Working Here? Here is our jobs page, where we post new positions, including fellowships, full-time and temporary roles.

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