Illinois regulators revoked the business license last month of a check cashing store featured in a ProPublica investigation of temp agencies and labor brokers in Chicago.
The revocation order is the latest in a string of government and legislative actions taken in response to a ProPublica series on the growth of temp work in the United States. Illinois regulators said they learned of the store's unlawful collection of fees from our story in April 2013.
According to the order, the 26th and Central Park Currency Exchange arranged a deal with a labor broker to funnel temp workers to its check-cashing business. Under the arrangement, the temp agency gave the workers' paychecks to the labor broker who then brought them to the check cashing store. The store distributed the checks only after it had deducted fees for the broker and for its services, according to the order by the state Department of Financial and Professional Regulation.
"The workers, earning minimum wage, were charged fees by the licensee well in excess of the amount permitted by law," Francisco Menchaca, director of the Division of Financial Institutions, wrote in the Dec. 2 order.
Regulatory actions rarely lead to criminal charges and the Illinois Attorney General's office said it has not received any information about the case from the agency.
The store has appealed the license revocation and is allowed to remain open until a hearing before an administrative judge. Bruce Balonick, an attorney for the check cashing store, said he didn't believe "the currency exchange did anything wrong other than to serve its customer."
Temporary employment has surged to record levels since the most recent recession, leading to the growth of " temp towns," where it is nearly impossible to find blue-collar work without first going through a temp agency. Workers in these largely Hispanic and African-American neighborhoods reported rampant wage theft and high fees that often brought their pay below the minimum wage.
In addition, a ProPublica analysis of workers' comp claims in California, Florida, Minnesota, Oregon and Massachusetts found that temp workers were far more likely to get injured on the job than regular workers. ProPublica detailed the deaths of temp workers who were buried alive in sugar, pulled into a hummus grinder and crushed by a 2,000-pound pallet of flavored rum—all after bosses ignored warnings about the dangers facing temp workers in their plants.
The United States stands nearly alone in its lack of regulation, with some of the weakest labor protections for temp workers in the developed world, ProPublica found using data compiled by the international Organization for Economic Cooperation and Development (OECD).
Among the actions taken:
In September, California Gov. Jerry Brown signed a bill, inspired by the ProPublica's investigation, which will hold the state's employers legally responsible for wage and safety violations committed by their subcontractors and temp agencies. Companies could face fines if the agencies they use fail to pay wages or provide workers' compensation insurance.
In July, U.S. Senator Robert Casey, who heads the Senate's workplace safety subcommittee, said he was "particularly troubled" by the death of Janio Salinas, who was buried alive in sugar 13 days after the Pennsylvania plant where he worked as a temp removed a safety screen because it slowed down production. Casey, D-Pa., wrote a letter to the Occupational Safety and Health Administration (OSHA) asking the agency to explain its handling of the case and what additional actions Congress could take to improve temp worker safety.
OSHA, which launched a temp worker initiative in April 2013, has devoted increased attention to safety violations involving temp workers and to informing temp agencies, and companies that use them, of their responsibilities. In 2014, OSHA inspected 283 worksites employing temp workers—more than four times the number of inspections in 2013, according to Nickole Winnett, an employment lawyer for Jackson Lewis.
The agency now trains inspectors and company safety officials with surveillance video that ProPublica obtained showing the failures that led to the death of temp worker Day Davis on his first day at a Bacardi plant in Jacksonville, Fla.
In Illinois, ProPublica detailed abuses in the Little Village neighborhood of Chicago, where labor brokers known as raiteros, picked up workers and shuttled them in buses and vans to pack products for Sony, Fresh Express, Smirnoff and Ty Inc., one of the largest makers of stuffed animals in the world.
Dozens of workers interviewed by ProPublica knew the companies they worked at only by generic Spanish names—las lechugas (the lettuces), los vinos (the wines), los peluches (the stuffed animals). Their only contact with the temp agency that officially employed them was that its name was on their paycheck. In all other respects, their employers were raiteros they knew only as Rigo, Carmen or Cirilo— drivers who would pick them up from street corners and alleyways and ferry them to suburban warehouses 30 minutes to an hour away.
The raiteros would charge the workers $8 a day for the ride. But workers who had their own rides or tried to arrange with the temp agency to drive directly to the warehouse said they lost their jobs to other workers who paid the raiteros.
Under Illinois law, it is illegal for temp agencies to charge workers for transportation. The arms-length relationship with raiteros allowed temp agencies to get around the law and benefit from free recruiting without having to open an office in the immigrant neighborhood.
The Illinois Department of Labor said it is still investigating three temp agencies on transportation issues—an inquiry that has lasted more than a year.
At the end of the work week, raiteros would pick up the paychecks from the temp agencies and bring them to check cashing places in Little Village. The check cashing store named in the revocation order, for example, made an arrangement to collect fees for Rigoberto Aguilar, a raitero who supplied workers for Select Remedy, part of one of the largest industrial temp agencies in the United States.
The check cashing store's manager, Rudy Polheber, said in 2013 that the practice was a convenience offered to Aguilar's temp workers, who would get charged a reduced rate of $1 plus 1 percent of the check, he said.
But Leone Bicchieri, director of the Chicago Workers Collaborative, said the arrangement often resulted in workers facing excessive fees, waiting weeks to get paid or getting trapped in a finger-pointing game between the temp agency and the raitero over missing pay.
It is illegal in Illinois for temp agencies to force a worker to pay fees for cashing a paycheck. But some workers, who had accounts at banks that cashed checks for free, told ProPublica they couldn't get their paychecks unless they agreed to pay the check cashing fees.
Aguilar did not return calls about the order, but responded with a text message declining to comment. Last year, Aguilar, who started as a temp worker himself, said he merely provided a service to workers who needed transportation. He said he had never denied a person work over failure to use the check cashing agency.
"It's positive that a public statement has been made," Bicchieri said, "that shady dealings between temp agency raiteros and check cashing places are not going to be tolerated."
Beginning in 2014, the federal government mandated that pharmaceutical and medical device manufacturers publicly report payments made to doctors and teaching hospitals. The first report covered the last five months of 2013. Use this tool to search for a company, drug or device — and compare it to another.
This story was co-published with the New York Times' The Upshot.
For more than five decades, the blood thinner Coumadin was the only option for millions of patients at risk for life-threatening blood clots. But now, a furious battle is underway among the makers of three newer competitors for the prescription pads of doctors across the country.
How Much Industry Money Goes to Doctors, Teaching Hospitals
Beginning in 2014, the federal government mandated that pharmaceutical and medical device manufacturers publicly report their payments to doctors and teaching hospitals. Use this tool to search for a company, drug or device — and compare it to another. Explore the app
(Lena Groeger, Ryann Grochowski Jones, Charles Ornstein and Mike Tigas, ProPublica)
The manufacturers of these drugs — Pradaxa, Xarelto and Eliquis— have been wooing physicians in part by paying for meals, promotional speeches, consulting gigs and educational gifts. In the last five months of 2013, the companies spent nearly $19.4 million on doctors and teaching hospitals, according to ProPublica's analysis of federal data released last fall.
The information, from a database known as Open Payments, gives the first comprehensive look at how much money drug and device companies have spent working with doctors. What it shows is that the drugs most aggressively promoted to doctors typically aren't cures or even big medical breakthroughs. Some are top sellers, but most are not.
Instead, they are newer drugs that manufacturers hope will gain a foothold, sometimes after failing to meet Wall Street's early expectations.
"They may have some unique niche in the market, but they are fairly redundant with other therapies that are already available," said Dr. Joseph Ross, an associate professor of medicine and public health at Yale University School of Medicine. "Many of these, you could call me-too drugs."
In almost all cases, older, cheaper products are available to treat the same conditions. Companies typically try to differentiate the new drugs by claiming they are easier to use; carry fewer side effects; work faster than competitors; or have medical advantages.
The makers of Pradaxa, Xarelto and Eliquis, for example, say their drugs are at least as effective as Coumadin for certain conditions but do not require routine blood tests or limitations on what patients can eat. (Patients taking Coumadin, also known as warfarin, shouldn't eat grapefruit or cranberries and have to limit green leafy vegetables in their diet.)
Officials at the Centers for Medicare and Medicaid Services, which administers Open Payments, and the Pharmaceutical Research and Manufacturers of America, the drug industry trade group, said they had not analyzed the data in order to rank spending by drug.
When told of ProPublica's analysis, John Murphy, PhRMA's assistant general counsel, said drug makers' spending should be seen not only as a marketing strategy, but also as a way of ensuring the best treatment options for patients. "On paper, a drug may not look like it is monumentally better than another drug, but to an individual patient, it might be," Mr. Murphy said.
20 Drugs That Companies Are Paying the Most to Promote
Below is a list of drugs for which companies spent the most on interactions with physicians and teaching hospitals in the last five months of 2013. These totals exclude royalty payments and research, which are related to drug development. FDA alerts and warnings may relate to a product’s side effects or concerns about its marketing.
* Note: General Payment figures do not include royalties. Source: Centers for Medicare and Medicaid Services, Food and Drug Administration, ProPublica reporting
According to ProPublica's analysis, Victoza, a diabetes medication made by Novo Nordisk, was the drug associated with the most payments to doctors, by dollar amount. The company spent more than $9 million on physician interactions related to Victoza in the last five months of 2013, excluding research payments and royalties, which relate more to drug development than marketing. (ProPublica created a tool that lets you look up any drug, device or company and compare it with any other.)
Victoza, through a once-a-day injection, helps lower blood sugar among diabetics, but researchers and advocacy groups have said drugs of its class carry an increased risk of thyroid cancer and pancreatitis. Dr. Todd Hobbs, chief medical officer of Novo Nordisk in North America, said the company's spending reflected Victoza's newness and the need to address such safety concerns.
"We just received a huge amount of interest and questions and need for education," Hobbs said, referring to inquiries by health care professionals, particularly primary care doctors. "You see the fruits of that in this report."
Eliquis, the anticoagulant jointly marketed by Bristol-Myers Squibb and Pfizer, ranked second in its link to spending on physicians, with nearly $8 million, our analysis showed. In a statement, the companies said their spending helps ensure physicians understand the appropriate use of Eliquis. Because the drug is prescribed by physicians in different specialties, the statement said, "it is critical to have a speaker program that adequately provides robust education to these physicians."
The drug associated with the third-most payments to doctors was Brilinta, a different type of blood thinner made by AstraZeneca that vies for sales with Plavix, which is now available generically. In an email, AstraZeneca said it had identified Brilinta as one of its "key platforms for growth" and increased speaker and research spending on it. "Physicians are also indispensable partners in our efforts to bring new medicines to patients," the company said.
ProPublica has tracked drug companies' payments to doctors since 2009 through a searchable database called Dollars for Docs. But this covers only 17 companies, most of which have been compelled to release this information under legal settlements with the government. It has no information from medical device makers.
The list of most promoted drugs featured many recent arrivals: 14 of the top 20 were approved by the Food and Drug Administration since 2010. Some treat similar conditions, including diabetes, schizophrenia and chronic obstructive pulmonary disease, so the competition among them is fierce. "They're fighting over the same doctors, I guarantee you," said Rhonda Greenapple Simoff, founder of a consulting firm that advises pharmaceutical companies in Bernardsville, N.J.
Largely absent from the top of the list were drugs that cure disease, such as a new class of hepatitis C treatments, or those that significantly extend life, particularly for cancer patients. If a drug is either the first to treat a disease or is much better than existing drugs, said Dr. Sidney Wolfe, the founder and now senior adviser to Public Citizen's Health Research Group, "they 'sell themselves' on the merits of their unique benefits."
Some highly promoted newer drugs "are fairly redundant with other therapies that are already available," said Dr. Joseph Ross, an associate professor of medicine and public health at Yale University School of Medicine. (Christopher Capozziello for The New York Times)
According to ProPublica's analysis, a few of the most heavily promoted drugs, including Samsca, which treats low sodium levels in the blood, have serious side effects that came to light after their approval by the federal government. The manufacturers of several others, including Copaxone, Latuda, Xarelto, Daliresp and Humira, have been faulted by the F.D.A. for improper promotion.
Subsys, approved in 2012 to treat cancer pain, ranked 23rd in spending on doctors. It's often prescribed for off-label, or unapproved, uses; in November, The New York Times reported that some of the doctors paid the most to promote the drug had disciplinary or legal troubles. In a statement to The Times, Insys Therapeutics, the drug's maker, said its marketing of Subsys was appropriate.
The medical device associated with the most payments to doctors was Intuitive Surgical's da Vinci surgical robot system, which the company has marketed as an effective, less invasive option for an array of procedures. Critics have complained that the device is needlessly expensive and overused, and say it has been linked to patient complications and deaths.
Intuitive spent nearly $12.8 million on physician interactions to promote the robot in the last five months of 2013, not including royalties and research. The spokeswoman Paige Bischoff said in an email that about half of the company's outlays for education and training were "pass through" spending: Surgeons or hospitals paid the company for services, and the company, in turn, paid doctors to provide them.
Dr. Robert Takla, an emergency room physician in the Detroit area, earned about $75,000 in the last five months of 2013 by delivering promotional talks about several of the most heavily marketed anticoagulants and blood thinners, particularly Brilinta, according to Open Payments.
He said he enjoys speaking on behalf of companies and thinks he offers a different perspective than cardiologists and internists — the usual prescribers of the drugs — because he treats complications of blood clots in the emergency room.
Dr. Takla said he reviews clinical studies before deciding to speak for a drug and turns companies down when he isn't impressed. He said he no longer spoke on behalf of Pradaxa because of what he characterized as public backlash against it, driven by a spate of lawsuits against its manufacturer, Boehringer-Ingelheim. (The company agreed to pay $650 million last year to settle the suits.) He accepts fees to speak about Xarelto, a drug he has taken himself for a deep vein thrombosis.
"It's a very fertile and very robust marketplace right now," he said of the anticoagulants.
News applications developer Mike Tigas contributed to this report.
Schools in Massachusetts will be subject to new limits on physically restraining or isolating public school students under reforms ushered in late last year.
School staff members will no longer be permitted to pin students face-down on the floor in most instances and will need a principal's approval to keep children in a "time out" away from class for more than a half-hour. The changes -- which will be phased in this fall and officially take effect in January 2016 -- also require state officials to collect comprehensive data on how often schools restrain or seclude students and how often someone is hurt as a result.
Massachusetts' reforms were shaped, in part, by a June story by ProPublica and NPR that showed physical holds and isolation remain common in public schools across the country. Our analysis of federal data revealed these techniques were used more than 267,000 times in the 2012 school year, with some schools employing them dozens – or even hundreds – of times.
There's a growing awareness that, in some cases, children can suffer serious injuries and lasting trauma from such treatment. At least 20 children have died while being held down or left alone in seclusion rooms.
Spurred by tougher state and federal regulations, as well as professional standards, psychiatric and health care institutions have worked diligently over the past decade to limit their use of restraints and seclusion.
But rules governing public schools have remained more scattershot. The U.S. Department of Education issued restrictions, but made them voluntary. State and local authorities passed a patchwork of regulations that left dangerous techniques illegal in some places but perfectly acceptable in others. For instance, some states don't let schools use restraints that can restrict breathing – such as face-down "prone" restraints –on any children. But others do.
Massachusetts followed few of the half-dozen best practices for safe use of restraints and seclusion outlined in the federal guidelines and a proposed national reform bill, ProPublica's reporting showed. The Disability Law Center, an advocacy group, pointed out in a white paper submitted to officials reexamining Massachusetts' rules that the state compared poorly to its New England neighbors.
James DiTullio, the state's undersecretary of education, said former Gov. Deval Patrick's administration and education officials felt the rules were "long overdue for a very serious and thorough review."
The state sought advice from parents, students, public schools and private schools that serve public school students to determine what needed to change. ProPublica's report "very much played a helpful and informational role as that process got off the ground," DiTullio said.
The state's proposal was not without controversy, drawing 130 comments.
Representatives of several private and public schools said they opposed banning prone restraints outright, which the state initially proposed. Some of the actions prohibited by the new rules are needed to ensure students' safety, warned the Providers' Council, an industry group for private providers of health and human services. In the end, the state agreed to continue to permit prone restraints – with a doctor's approval – in rare circumstances.
The Massachusetts Association of School Superintendents was glad to see the exemption, said Christine McGrath, the group's director of operations.
The group was less pleased, she said, with new requirements for reporting and reviewing restraints, which superintendents will likely find burdensome, and also with limits on "time outs." "The reality," McGrath said, "is sometimes it takes more than 30 minutes for a child to de-escalate and to regroup."
Still, others, including advocates for the disabled and some parents, applauded the changes.
One parent told education officials how her son had suffered during prone restraints, saying the reforms should go further. "I told them I couldn't breathe and they just said you can breathe if you can talk," the son recounted, according to a summary of comments submitted. "They don't understand. I have a very short neck and I am very large and I get panicked when I am afraid I cannot breathe."
Rick Glassman, director of advocacy for the Disability law Center, said the center has heard many such stories from Massachusetts parents and children.
One child was so traumatized by being held face-down on a soiled carpet that he went home and barricaded himself in his room with furniture, refusing to return to the school, Glassman said. Another child was treated for post-traumatic stress disorder as a result.
Massachusetts' new rules also increase training requirements for school staff members and mandate that schools convene a team to come up with a plan for any student restrained multiple times in a single week.
One of the most significant new requirements is that schools report all restraints and restraint-related injuries to the state. In the past, only some were: Numbers reported in Connecticut, which requires schools to tally all restraints, suggest that as many as 90 percent of Massachusetts' holds were going unreported, Glassman said.
DiTullio said the new data collection provision will provide educators with a critical tool.
"We will learn so much more about how these restraints are being used, who they are being used on, how often they are being used," he said. "Good data leads to better outcomes."
Citing an investigation by ProPublica and NPR, Sen. Charles Grassley is asking the American Red Cross to explain more clearly how it uses public donations, specifying how much money goes to services and how much to overhead.
"The public's expectation for an important, well-known organization like the Red Cross is complete, accurate fundraising and spending information," Grassley, R-Iowa, said in a statement. "In reaction to the news reports on this topic, I'm asking the Red Cross to elaborate on how it calculates the facts and figures given to the donating public."
Americans typically look to the Red Cross whenever disaster strikes, giving generously. The iconic charity took in over $1 billion in donations in 2013.
In response to Grassley's request, the Red Cross said it is setting up a briefing for the senator's staff that will happen sometime later this month. "We welcome and look forward to the opportunity," Red Cross spokeswoman Suzy DeFrancis said.
Grassley's request was first reported by the Chronicle of Philanthropy.
At issue are statements made by Red Cross CEO Gail McGovern and echoed on the charity's website and in other published materials that "91 cents of every dollar that's donated goes to our services."
But that oft-repeated figure is not borne out by the charity's statements in annual reports and tax filings. These documents show that fundraising expenses alone have eaten up as much as 26 cents of every donated dollar in recent years.
After our inquiries last month, the Red Cross removed the statement from its website. The Red Cross said at the time that the claim was not "as clear as it could have been, and we are clarifying the language."
Grassley has long pushed for tougher regulations of nonprofits and has a history with the Red Cross. In 2007, he pushed through legislation that overhauled the governance structure of the charity, which was chartered by Congress over a century ago.
Grassley isn't the only one nosing into the Red Cross' operations. The Government Accountability Office, the investigative arm of Congress, is looking into the charity's troubled response to Superstorm Sandy, which hit New York and New Jersey in late 2012.
The GAO's inquiry, which was first reported by the Chronicle of Philanthropy, began last February after a request from the staff of Rep. Bennie Thompson, D-Miss., the ranking member of the Homeland Security Committee. Since then, the GAO and the Red Cross have been discussing the parameters of the study. The GAO says it plans to finalize its methodology "within the next couple of weeks" and then begin working on the inquiry itself.
The scope of the GAO's probe is expected to encompass more institutional questions, including "What are the nature and extent of the oversight to which the organization is subject, and is it sufficient?"
A state judge has ordered the New York City Police Department to release records on a secretive program that uses unmarked vans equipped with X-ray machines to detect bombs.
The ruling follows a nearly three-year legal battle by ProPublica, which had requested police reports, training materials, contracts and any health and safety tests on the vans under the state's Freedom of Information Law.
ProPublica filed the request as part of its investigation into the proliferation of security equipment, including airport body scanners, that expose people to ionizing radiation, which can mutate DNA and increase the risk of cancer.
Richard Daddario, then the NYPD's deputy commissioner of counterterrorism, told the court in 2013 that releasing the documents would hamper the department's ability to conduct operations and endanger the lives of New Yorkers.
Disclosing them, he said, would "permit those seeking to evade detection to conform their conduct to the times, places and methods that avoid NYPD presence and are thus most likely to yield a successful attack."
But Supreme Court Judge Doris Ling-Cohan called the NYPD's argument "mere speculation" and "patently insufficient" to outweigh the public's right to know.
"While this court is cognizant and sensitive to concerns about terrorism, being located less than a mile from the 9/11 site, and having seen firsthand the effects of terrorist destruction, nonetheless, the hallmark of our great nation is that it is a democracy, with a transparent government," she wrote in her decision last month.
Nick Paolucci, a spokesman for the city's law department, said Thursday that the NYPD would appeal "because disclosing this sensitive information would compromise public safety."
The X-ray vans at issue are essentially a version of older airport body scanners mounted on a truck.
Only three years ago, airline passengers routinely went through X-ray machines known as "backscatters" at major airports, such as Los Angeles International, New York's John F. Kennedy and Chicago O'Hare. But citing privacy concerns, the TSA removed body scanners that emit X-rays and replaced them with machines that use technology that is considered less invasive and safer.
But X-ray vans continue to be used by law enforcement agencies. They were developed shortly after the 9/11 terrorist attacks by American Science & Engineering Inc. in Billerica, Mass., and deployed by the U.S. military in Iraq and Afghanistan to sweep areas for roadside and car bombs. Because they typically look like blank, white panel trucks, soldiers in Iraq nicknamed them "white devils."
U.S. Customs and Border Protection recently began using them at border crossings, ports, Border Patrol checkpoints and special events such as the Super Bowl.
Very little has ever been reported about the NYPD's use of X-ray vans. In fact, until ProPublica's lawsuit, the police department had never said anything publicly about them other than to confirm their existence.
The most extensive reference to the vans came in a book written by two ABC News reporters who chronicled a year inside the agency's bomb squad.
Describing the security around the 2004 Republican convention in New York, they wrote that every vehicle entering a street in front of the convention hotel was ordered to drive between two white vans, which X-rayed each vehicle for explosives.
While the NYPD has refused to release information about its use of the vans—even how many it has, how much they cost or how it ensures the safety of the public—other government agencies have not been so secretive.
For example, Customs provided ProPublica with more than 150 pages of records under the federal Freedom of Information law just three months after a reporter filed an identical request with them in 2012.
Moreover, multiple researchers have published studies revealing security flaws in the X-ray technology, in one case, after buying a backscatter machine on eBay.
"The information contained in the records requested from the NYPD will allow the public to assess the potential health, cost, and privacy concerns raised by the NYPD's use of this vehicle," ProPublica told the court.
ProPublica is represented in the case by Yale Law School’s Media Freedom and Information Access Clinic and David Schulz of Levine, Sullivan, Koch & Schulz.
The Customs documents and technical specifications—which are on the manufacturer's website—show that the van emits less than 10 microrems of radiation per scan. That's about twice as much as the old airport body scanners. But it's extremely low compared to medical X-rays and well within industry standards for acceptable exposure.
The National Academy of Sciences is expected to release a report this month on radiation exposures from the TSA's old scanners. Although those machines also met industry standards, a number of prominent scientists said TSA had failed to follow the health and safety principle to keep radiation doses "as low as reasonably achievable." The TSA had the ability to use a different scanner that could also find plastic explosives and weapons, but did not use X-rays.
"It's not that the radiation from these machines is very high," Peter Rez, an Arizona State University physicist, told ProPublica in 2012. "It's 'Does the benefit outweigh the risk?' "
The long-term health risks of low levels of radiation are unknown. But the National Academy has taken the position that the danger comes from cumulative exposure and that even trivial amounts increase the risk of cancer.
The X-ray vans—which reportedly cost between $729,000 and $825,000 each—are designed to find organic materials such as drugs and explosives. The rays penetrate the metal in a car or concrete in a building and scatter back to a detector, producing an image of what's inside. The van can scan while driving alongside a row of shipping containers or while parked as cars pass by. Customs agencies around the world have used them to fight drug and human smuggling.
But most Federal Drug Administration regulations for medical X-rays do not apply to security equipment, leaving the decision of when and how to use the scanners up to law enforcement agencies such as the NYPD.
The NYPD's policies are of particular interest because many agencies have adopted strict policies to address potential harm from backscatter X-ray scans. When Customs began using the vans extensively in 2010, the agency prohibited their use on occupied vehicles and required that people get out of the vehicles before they were X-rayed.
But because the NYPD has refused to release the department's policies and procedures, it's unclear how widely the vans are being used—if at all, whether they're being used to scan people or even if police are deploying them for routine patrols on busy city streets.
For example, the NYPD asserted in court records that it did not have any records detailing its policies for privacy protections, how long images from the X-ray vans could be kept or who in the NYPD could view the images.
That conflicted with a court affidavit from Daddario, the counterterrorism chief, who discussed such documents and why they shouldn't be disclosed.
Judge Ling-Cohan ordered the NYPD to pay ProPublica's attorney fees and explain in writing what effort they made to search for documents responsive to the request.
ProPublica's president Richard Tofel said he was "gratified that the State Supreme Court has so clearly rejected the Police Department's efforts to stonewall this important request for information that could affect public health and that has certainly cost taxpayers a lot of money."
"As the court makes clear, vague and wholly conclusory allusions to possible terrorist threats do not and should not create exceptions to our laws on government transparency," he said. "We are sorry to learn the NYPD had decided to waste more citizen time and taxpayer money by appealing this ruling."
The Florida sex crime sting-and-switch. WTSP reports a pattern of police misconduct in its ongoing investigation of sex sting operations in Tampa Bay. In some cases, men were facing felony charges for seeking sex with underage teens after responding to police decoys online. "Most of the cases examined by 10 Investigates involved men who weren't necessarily looking for underage teens, but either posted – or responded to – ads seeking adults." — WTSP Tampa via @conor64
New Jersey has diverted more than $50 million meant to prevent lead poisoning to pay routine bills. The Lead Hazard Control Assistance fund was created in 2004 to help New Jersey families remove or contain lead and to relocate children to "lead-safe" housing. Lawmakers were supposed to allocate at least $77 million to the fund through fiscal 2015, but most of the money has been diverted to the state's general treasury. Meanwhile, New Jersey still hasn't adopted the CDC's recommended threshold for lead exposure. — Asbury Park Press via @KenStailey
Hot cash to Cuba. The South Florida Sun Sentinel investigates the pipeline of stolen money flowing into Cuba in the shadow of U.S. sanctions. Cuban crime rings have generated an estimated $2 billion since 1994, the Sun Sentinel reports, as the accused benefit from special immigrant protections that usually prevent their deportation. "Cuban crime rings are staging car accidents for insurance fraud, hijacking trucks, and selling their Medicare numbers to provide for their families in Cuba. They're smuggling money from these illegal enterprises on charter flights to Cuba, paying mules to take cash back and wiring dollars through Western Union," the Sun Sentinel reports. — via @IRE_NICAR
Sex trafficking: The boom North Dakota isn't prepared for. The influx of men working North Dakota's Oil Patch has created a growing demand for commercial sex workers, including underage girls. More than a dozen men were convicted last year of attempting to buy sex from underage girls, and one sting "snared so many prospective johns it had to be shut down early." The issue has caught law enforcement and local officials unprepared as they are "struggling to keep up with all the demands of a booming population and the crime that has followed" in the region. — Forum News Service / Pioneer Press via @rschalow
Why is Kentucky paying millions to jailers who don't operate jails? The state pays nearly $1.4 million a year to 41 jailers in counties that have no jails — most of them shuttered for cost reasons or because they failed to meet minimum standards. Why? "Kentucky's the only state that has elected jailers," a corrections expert explains. — Kentucky Center for Investigative Reporting via @marshallproj
Every day, cops toss dangerous military-style grenades during raids, with little oversight and horrifying results.
by Julia Angwin and Abbie Nehring, ProPublica
It was just before dawn when 18 police officers poured out of an armored truck and an unmarked white van at the Laurel Park apartment complex on the outskirts of Atlanta. A few days earlier, a confidential informant reported seeing “a brown skinned black male” with “a small quantity of a green leafy substance.” The 22-year-old suspect, paroled for forging a check, lived in a small ground floor apartment with easy access. But the police didn’t plan on taking any chances.
Treneshia Dukes suffered second-degree burns from a flashbang grenade. Her sister took these cellphone photos shortly after she got out of the hospital.
Jason Ward and his high-school sweetheart Treneshia Dukes were asleep, naked, in the apartment when an explosion went off and their bedroom window shattered. Ward leapt up toward the broken glass. Dukes started running. In the dark, she crashed into a closet door before stumbling into the bathroom and balling up in the tub. “I just started crying and I’m praying like, ‘I’m not going to die like this, this is not how I want to die,’” she later testified. Seconds later, a man wearing a mask stormed the bathroom and held a gun to her face, instructing her to lie on the floor. “If you move I’m going to blow your fucking brains out,’” Dukes recalled him saying. It was then she noticed skin hanging off her arm and blistering patches of pink flesh on her brown legs.
The masked man noticed her skin, too. He told Dukes to sit up and signaled to a man in plainclothes to inspect her. “The guy came in there,” recalled Dukes, just starting to realize she was dealing with the police, not armed assailants, “and he looked at me and he looked back at the other guy and was like, ‘Y’all done fucked up.’”
Dukes had been hit by a flashbang, a $50 device used by the police to disorient suspects, often during drug raids. First designed nearly 40 years ago to help military special forces rescue hostages, flashbangs create a stunningly bright burst of light and an ear-splitting boom that temporarily blind and deafen anyone standing within a few feet of them. Last week, French special forces used flashbangs as part of a dramatic operation to free hostages held at a kosher supermarket in Paris. But when these modified hand grenades explode on the human body, they can cause severe injury or death. The flash powder burns hotter than lava. Dukes suffered second-degree burns across her body. When later asked to describe the pain she felt that morning on a scale of one to 10, with 10 being the absolute greatest, Dukes said 100.
The military-style assault on the Laurel Park apartment the morning of July 21, 2010, did not uncover a violent criminal’s drug lair. Although Dukes’ boyfriend grabbed a handgun when the window shattered, he tossed it aside as soon as he realized that the intruders were police. He threw himself down on the ground and surrendered immediately. In the end, after storming the apartment and throwing three flashbangs, the police found about a tenth of an ounce of marijuana.
Such aggressive use of flashbangs has become common among today’s militarized police forces. The Clayton County police, who burned Dukes, deployed flashbangs on about 80 percent of their raids in the year prior to her injury, according to police records. Police argue that flashbangs save lives because they stun criminals who might otherwise shoot. But flashbangs have also severed hands and fingers, induced heart attacks, burned down homes and killed pets. A ProPublica investigation has found that at least 50 Americans, including police officers, have been seriously injured, maimed or killed by flashbangs since 2000. That is likely a fraction of the total since there are few records kept on flashbang deployment.
The U.S. Court of Appeals for the 7th Circuit wrote in 2000 that “police cannot automatically throw bombs into drug dealers’ houses, even if the bomb goes by the euphemism ‘flash-bang device.’” In practice, however, there are few checks on officers who want to use them. Once a police department registers its inventory with the Bureau of Alcohol, Tobacco, Firearms and Explosives, it is accountable only to itself for how it uses the stockpile. ProPublica’s review of flashbang injuries found no criminal convictions against police officers who injured citizens with the devices.
After storming the apartment, throwing three flashbangs and burning Treneshia Dukes, the police found a tenth of an ounce of marijuana. (Bryan Meltz for ProPublica)
After Dukes filed a formal complaint, a Clayton County Police Department internal investigators wrote in their report that officers had done “nothing wrong” the morning of her injury. In fact, the team commander was promoted. Outraged by the inaction, Dukes filed a civil lawsuit against the police in July 2012, alleging excessive use of force. “No one has ever apologized,” Dukes said in an interview. “It’s not right to feel like you can just hurt someone, and it’s OK.”
On a warm day this fall, we traveled to northeast Arkansas to throw flashbangs with one of the first Americans to make them, a ruddy-faced explosives manufacturer named Bill Nixon. He operates from two low-slung buildings off a rural highway not far from Memphis. “Cover your ears,” he said as we positioned ourselves behind earthen bunkers near the buildings. Nixon pulled the pin, and as he threw the grenade, a lever called the spoon released. A second later, the device deflagrated. Even at a distance of 30 feet, the bang was so loud that both of us involuntarily screamed when it went off.
Nixon stumbled into the flashbang business. Trained as a mechanical engineer, he got an explosives license in the ‘80s and started selling blasting caps and other explosives to local police departments. In 1988, the head of the SWAT team at the Memphis Police Department told him he was having troubling finding flashbangs. Police departments across the nation were starting their own SWAT teams to rescue hostages and storm barricaded houses. But an industry had not yet arisen to provide military-style weapons for the police. Even the Los Angeles Police Department, which founded the nation’s first SWAT team in 1966, was building flashbangs for itself by modifying military hand-grenade simulators.
Sensing a need, Nixon decided to try his hand at building a flashbang. By 1990, he had patented a device that he called the Omni Blast. He marketed his device as having less smoke than its competitors and a more spherical explosion. Pretty soon, he had customers all across the nation.
But, as flashbangs became ubiquitous, Nixon worried that departments weren’t training officers to use them properly. Reports of accidents started to trickle in. A prison guard in Nevada lost her hand when a flashbang exploded during a training exercise. And then, in 2002, an officer closer to Nixon’s home in Arkansas was injured. An Omni Blast exploded in the hand of Brandt Carmical, a North Little Rock police officer, as he conducted a flashbang demonstration for a local Boy Scout troop. It pulverized his right hand, blew out his right eardrum and perforated his left eardrum. “I saw all this flesh,” Carmical recalled. “I couldn’t hear anything.” At the hospital, Carmical’s hand was amputated at the wrist. Later, he had to go back for further surgery because black powder from the flashbang was causing his skin to rot.
Explosives manufacturer Bill Nixon, one of the first Americans to sell flashbangs, believes police should not treat flashbangs like less-lethal weapons such as tear gas. “It boggles my mind,” he said. (Andrea Morales for ProPublica)
Carmical sued Nixon, arguing that the Omni Blast was defective and exploded too quickly. Nixon said that although it is possible that his device was faulty, he suspects that the accident occurred because the spoon was prematurely released. The dispute was settled out of court for an undisclosed amount (which Carmical said allows him to forgo a second job), and no judicial determination was made about the cause of the accident.
Nixon said he stopped selling flashbangs two years after Carmical’s accident, concerned that police officers are not sufficiently trained to use them. “I realized that, let’s say this is the perfect device,” Nixon said, “it’s still going to hurt people.” In Nixon’s opinion, the police are wrong to treat flashbangs like less destructive weapons such as tear gas and sound cannons. “It boggles my mind,” he said.
Carmical, a former Marine, returned to work wearing a prosthetic with a U.S. Marine Corps logo and rejoined the SWAT team. He said the North Little Rock police have become “more selective” about flashbang deployment since his injury. Often, he said, they will set off a flashbang outside a home as a distraction, allowing officers to enter from another side of the house. When flashbangs are needed, Carmical prefers to let his teammates throw them. Being near an exploding flashbang can cause Carmical to freeze up. “It’s almost like unplugging myself for just a second,” he recalled, grateful that his fellow officers “kind of pat me on the shoulder and plug me back in.”
A flashbang pulverized the right hand of North Little Rock police officer Brandt Carmical, who now wears a prosthetic. “I saw all this flesh,” Carmical recalled. (Andrea Morales for ProPublica)
Across the river, in Little Rock, Ark., the police department is still using flashbangs on nearly every raid, according to ProPublica’s analysis. Police department records obtained by the American Civil Liberties Union, as part of its nationwide survey of police militarization, showed that between
2011 and 2013, Little Rock police tossed flashbangs into homes on 112 occasions, or 84 percent of raids — nearly all of them in predominantly black neighborhoods.
Little Rock Police Department spokesman Sidney Allen defended the practice, saying, “You may see a large number of flashbang deployments, but what we see is a large service of warrants without gunfire.” But no weapons were found at three-quarters of the homes during this period, according to department records obtained by ProPublica. Most searches yielded drug paraphernalia such as small baggies of marijuana and glass pipes. Others just turned up bottles of beer.
One Sunday afternoon in 2012, Sharon Kay Harris, a diminutive 54-year-old grandmother, was still in her church clothes getting a soda out of the fridge when police officers threw a flashbang into her kitchen. “It was very scary,” Harris said. “It’s real loud, it sounds like a gun going off.” Other officers broke down her front door with a battering ram and threw a flashbang into the living room, igniting a pile of clothing. A few weeks earlier, Harris had sold a plate of food and six cans of beer without a license, a misdemeanor in Arkansas, to an undercover officer. The officer returned on a second occasion to catch Harris in another offense: selling liquor on a Sunday. During their raid on Harris’ house, the police confiscated several cases of beer, which she freely admitted to selling along with hot dogs, nachos and fajitas.
After police threw flashbangs into the home of Sharon Kay Harris, they confiscated several cases of beer, which she freely admitted to selling along with hot dogs, nachos and fajitas. (Andrea Morales for ProPublica)
Afterward, the city of Little Rock sued Harris, alleging that her property should be declared a nuisance and “abated” — or razed — since it was being used to facilitate criminal violations. The Pulaski County Circuit Court dismissed the city’s lawsuit, but Harris was still fined $950. She could not afford the bill, so she cut grass and picked up trash at the county jail instead.
Little Rock Police Department spokesman Allen said he does not consider the force used on Harris’ home to be excessive. “If she hadn’t been selling illegal items out of the home, no warrant would have been served,” he said. “What you call extreme, we call safe.”
If there was ever a flashbang injury that might have warranted criminal charges against an officer, it would be the case of Bou Bou Phonesavanh, a 19-month-old baby who last May was nearly killed by a flashbang during a drug raid in Georgia. The case garnered national attention.
Bou Bou was sleeping in a portable playpen at the foot of his parents’ bed when the Habersham County Special Response Team broke down the door to the room and threw a flashbang. The grenade landed on a pillow next to Bou Bou’s face. The blast blew a hole in his chest, severed his nose, and tore apart his lips and mouth. The SWAT team was looking for the boy’s cousin, Wanis Thonetheva, who a day earlier had allegedly sold a bag of methamphetamine to a confidential informant on the property. But Thonetheva wasn’t there, and no drugs or weapons were found. Hours later, Thonetheva surrendered peacefully when officers knocked on the door at a nearby house where he was staying.
At the hospital, Bou Bou was placed in a medically induced coma for almost a month. He has had eight reconstructive surgeries, including skin grafts, and racked up $1.6 million of medical bills that his family cannot afford to pay. In the next few months, he will need surgery to remove black flashbang powder that embedded in his face, arms and chest before it gets infected. And because his skin grafts won’t grow as he grows, Bou Bou will need reconstructive surgery every two years for the next 20 years. His mother, Alecia Phonesavanh, said that she and her husband plan to donate their own skin for the future grafts. Bou Bou often wakes up in the middle of the night screaming and shaking and holding his mouth. “It almost seems like he’s remembering what happened,” said Alecia Phonesavanh, who has been unable to hold down a job since the accident because of the demands of caring for her son.
First designed to help military special forces rescue hostages, flashbangs create a burst of light and an ear-splitting boom that temporarily blinds and deafens anyone standing within a few feet of them. (Andrea Morales for ProPublica)
In October, a Habersham County grand jury declined to indict the officers involved. “Some of what contributed to this tragedy can be attributed to well-intentioned people getting in too big a hurry,” the grand jury wrote in its findings. The grand jury instead recommended that officers receive better training and that policy makers consider restricting the use of “no-knock” warrants, which allow police to burst into homes unannounced, often using battering rams and flashbangs. The Phonesavanhs plan to file a civil lawsuit to recover their medical expenses, which the county has refused to pay, and are hoping federal prosecutors will bring charges against the officers involved. “For us, justice won’t mean money,” Alecia Phonesavanh said. “Justice means actual consequences for the officers who caused this nightmare for my family.”
Georgia State Sen. Vincent Fort hopes the case will renew momentum for a bill he’s been pushing since 2008 that would require a higher legal standard to issue no-knock search warrants. “The likelihood of something passing has increased,” he said, acknowledging that strengthening no-knock requirements would not necessarily prevent police from throwing flashbangs after a brief knock on the door. Fort said he is also considering adding requirements for flashbang training and restricting their use to daytime hours.
Currently, there are no binding national requirements for police to be trained in the use of flashbangs. The National Tactical Officers Association, the trade group for SWAT teams, strongly advises that untrained officers not be allowed to use flashbangs. The trade group conducts its own training sessions that officers can attend (if their department can afford to send them). Most flashbang manufacturers also offer instruction for a fee. David Pearson, who runs flashbang training sessions for the trade group, said in an interview that he urges caution. “Flashbangs do have their place,” he said, “but I don’t think it’s on every mission or in every room.”
The scope of police flashbang training is sharply contested in the Treneshia Dukes case. Clayton County Police Department records obtained by Dukes’ attorney Mario Williams indicate that the department hadn’t held flashbang training in the three years prior to her injury. The manufacturers’ training manual used by Clayton County police — which devotes an equal number of pages to deploying the devices as it does to deploying legal defenses — advises officers in no uncertain terms: “Sound policy, documented training, and looking before you throw a device are the best defenses against civil or criminal claims.” Department officers testified that their general SWAT training included work with flashbangs even though it wasn’t formally recorded in department training logs.
In a deposition, Williams asked Clayton County Sgt. Scott Malette, who deployed one of the flashbangs in the apartment where Dukes and her boyfriend slept, about a previous raid that resulted in a flashbang injury. In that 2009 raid, his team encountered a closed door. As a colleague kicked it open, Malette threw a flashbang into the room. “The room was dark, and I did not identify any room occupants,” Malette had written in the police report. The flashbang landed on the bed where a man and woman were sleeping, and it burned the man’s legs and feet.
“Everyone carries a flashbang,” Malette testified. “Any time we encounter locked doors, we have an unknown, we have to gain back that initiative.”
“Were you aiming the flashbang over the bed?” Williams asked.
“Yeah, on the other side of the bed,” Malette replied.
Flashbangs Thrown in Little Rock
It’s difficult to find police departments that keep records of flashbang use. But we found that Little Rock, Ark., did note the damage done by flashbangs in SWAT team records obtained by the ACLU. Between 2011 and 2013, Little Rock police tossed flashbangs into homes on 84 percent of raids — nearly all of them in predominantly black neighborhoods.
Black Population
0 – 20%
20 – 35%
35 – 60%
60 – 100%
Flashbang thrown
(Source: Census 2010. Does not include Hispanics.)
Aim is very important in flashbang legal cases. This standard was established in 1987 when the California Supreme Court ruled that throwing a flashbang could be considered a reasonable use of force when officers “have seen fully into a targeted room.” This legal precedent means that Dukes’ case will likely turn on a narrow thread of argument. Did the police wildly throw a flashbang into her bedroom without looking, or did Dukes unwittingly run into the path of a flashbang that they had carefully aimed?
Dukes testified she was lying in bed when a circular object flew in through the window, landed on her thigh and exploded. Her account is supported by her boyfriend’s brother, who visited shortly after the raid, and the maintenance man for the apartment complex. Both testified that they saw black flashbang residue on the wall above the bed. Also on her side is a powerful piece of physical evidence: a burned red-and-black comforter under which Dukes slept at the moment of the raid.
Clayton County officials admit that at least three flashbangs were deployed during the raid that injured Dukes. SWAT commander Stephen Branham, who is a defendant in the case, testified that he was standing within view of Dukes’ bedroom window and that his team indeed broke it in an operation known as a “break and rake.” Branham said that on a previous raid his team had thrown a flashbang through a window it had broken. But during the Laurel Park raid, he testified, “I was standing there the whole time. Nobody threw a bang through that window.” According to Branham, his team deployed two flashbangs outside the apartment, and Sergeant Malette threw a third one into the front hallway after the front door had been breached. Malette testified that Dukes must have run into his flashbang. “From where she ended up and where the flashbang was and the marks and stuff on the door, with the evidence, I surmised that it was — it was actually the bang that I deployed that would be responsible for burning her in that area,” Malette said.
However, Malette also testified that the description of Dukes’ burns likely fit a scenario in which a person was hit by a flashbang while lying down.
“I would have to assume that that person was prone,” Malette said under oath.
At the time she was burned, Dukes was pregnant but didn’t know it. Sometimes she worries that her son, now 3 years old, could have been affected by the painkillers she was prescribed in the hospital. (Bryan Meltz for ProPublica)
The U.S. District Court for the Northern District of Georgia will soon decide whether to allow Dukes’ case to proceed. Dukes, now 26, has had two children with Ward and works as a package handler at a warehouse.
At the time she was burned, Dukes was pregnant but didn’t know it. When she found out, she immediately stopped taking the powerful painkillers she had been prescribed in the hospital. But sometimes she worries that her son, who turns 4 in March, could have been affected by the medicine she took. Today, it bothers her that her skin is darker in the patches where she was burned. “My skin is ugly, and I feel like I’m ugly,” she said in an interview. “When I talk about it, I just get angry.”
Sometimes loud noises trigger memories of the event. One summer night after the accident, Dukes woke up in a panic. A storm was raging outside and, in her sleepy state, she confused the thunder and lightning for flashbang explosions. She ran into the bathroom once again and curled up on the floor, rocking and saying, “They’re coming, they’re coming.” Her mother found her and asked who was coming. “I said, ‘Them. Please don’t burn me again.’”
Julia Angwin is a senior reporter at ProPublica. From 2000 to 2013, she was a reporter at The Wall Street Journal, where she led a privacy investigative team that was a finalist for a Pulitzer Prize in Explanatory Reporting in 2011 and won a Gerald Loeb Award in 2010.
Abbie Nehring is a research intern at ProPublica. She was previously a research assistant at The Investigative Fund at The Nation Institute. She graduated from Bard College at Simon’s Rock in 2012.
As Anita Chanko watched ABC’s medical docu-series “NY Med,” the shock and outrage set in: she recognized the blurred out image of a man in the operating room. “I saw my husband die before my eyes,” she said.
Her 83-year-old husband Mark Chanko was struck by a sanitation truck in April 2011 and taken to NewYork-Presbyterian Hospital/Weill Cornell Medical Center. His last words, as shown on the program, were "Does my wife know I am here?" Chief surgery resident Sebastian Schubl and the other doctors were unable to revive him and he died. A camera crew from “NY Med” documented the heartbreaking moment.
For hospitals like NewYork-Presbyterian, “NY Med” provides free publicity and distinguishes their medical care on a major broadcast network. But some patients like Chanko are in no condition to consent to being filmed. No one in the Chanko family had given approval for the show to broadcast his last moments to a national TV audience, senior reporter Charles Ornstein explains to Editor-in-Chief Steve Engelberg in this week’s podcast.
Patient privacy at hospitals is protected under the 1996 federal law known as HIPAA, the Health Insurance Portability and Accountability Act. Hospital staff don’t discuss the details of a patient’s medical care in areas where others can eavesdrop, and pharmacies ask customers to stand in a far-off line so they don’t overhear personal prescription information.
“NY Med” received permission from the hospital, but not from the Chanko family. Ornstein raises the question, does the presence of cameras alone violate HIPAA?
“Even if they could never identify you, would you want somebody filming those most private moments when you may be naked, they may be operating on the inside of your body, you may be dying, and there’s a camera in there filming it?” asks Ornstein.
Under HIPAA, patients do not have the right to sue doctors and hospitals for violations. Patients can file a complaint with the U.S. Department of Health and Human Services' civil rights office, which the Chanko family did. Federal regulators are still reviewing the case after two years. Ornstein says that if the feds take the position that filming in emergency rooms violates patient privacy, shows like NY Med could potentially be in danger.
The family sued ABC, NewYork-Presbyterian and Dr. Schubl for damages, but an appellate panel dismissed the case. In court filings, ABC asserts that the footage of Chanko is unidentifiable since his image is blurred, and because the show is produced by its news division, it is protected by the First Amendment. The family has asked for the decision to be further reviewed.
You can listen to this podcast on iTunes, SoundCloud or Stitcher. For more on this investigation, read Ornstein's full story, which was co-published with the New York Times.
Understood broadly, jury duty is an honor and privilege. Experienced daily, it can feel like a pain in the neck – the hours spent waiting, the complications of work or child care, the likelihood of ultimately being, well, dismissed.
But for the scores of people called last week to Part 42 of State Supreme Court in Manhattan, jury duty has come with an additional burden: the disclosure of a fair amount of quite personal information – about their mental health history, their possible drug use, any history of being fired and the health and criminal backgrounds of their family members.
In Part 42 last week, Justice Maxwell Wiley began the process of seating a jury for a controversial and emotionally charged case, the trial of the man accused of abducting and killing 6-year-old Etan Patz in 1979. The trial has the chance to close one of the country's most famous missing child cases, and it could last, according to Wiley, from two to three months.
Each potential juror was asked to fill in a formal questionnaire, one way lawyers safeguard against possible bias or identify potential sympathy. Tales of drug use and psychiatric history will surface in the Patz murder trial, so several of the questionnaire's 109 inquiries probe into areas that are deeply personal, even embarrassing.
Here is Question 80:
"Have you, a family member or close friend ever abused drugs or alcohol?"
And then Question 81:
"If yes, identify your relationship to the person, the substance abused and provide any significant history."
This line of questioning is not entirely uncommon. And the judge has assured the jurors that the information will be kept secret by the court and the lawyers involved.
Still, detailing a loved one's struggle with dependency has to be awkward. And disclosing the substance abuse of a friend might lead to some discomfiting chats with old pals around the holidays.
And it is far from all Wiley has asked jurors to provide.
Questions 87 through 90 cover some more sensitive ground. Three of them — 87, 88, 89 – ask if the potential juror or a close friend or family member have ever been seen by a psychiatrist, treated by a mental health professional, or been prescribed medication for a psychiatric disorder.
"If 'YES' to 87, 88 or 89, please explain," reads Question 90. "Please include a description of your relationship to the person, the name of the disorder and the name of any medications that person has taken; and the approximate date of use."
Pedro Hernandez, the former Manhattan bodega clerk who confessed to strangling Patz in an unexplained spasm of violence 34 years ago, has a history of mental health and drug abuse problems. His defense team has argued that his psychiatric issues are profound and explain what the lawyers intend to prove was a false and coerced confession. Hernandez's drug use, they suggest, is consistent with people who suffer, often untreated, from mental disorders. Prosecutors have sought to minimize Hernandez's psychiatric history and emphasize his drug use, suggesting it is but one example of a life of repeated criminal misconduct.
Some potential jurors who filled out the questionnaire last week are expected to be questioned by lawyers and the judge this week. It is destined to be a fascinating trial. Patz's body has never been found. One of the witnesses the defense aims to call to call is the convicted pedophile who, for years, was considered a prime suspect and who was found liable for Patz's death in a civil proceeding a decade ago. The prosecution on Monday made an 11th-hour notification to Hernandez's lawyer that it planned to have a previously undisclosed informant testify. The New York criminal justice system has been rocked in recent years by a spate of wrongful convictions, and the performance of the detectives in the Hernandez case is sure to face scrutiny. They opted, against the wisdom of New York state court officials, not to videotape the early hours of Hernandez's interrogation.
The publicity surrounding the case – Hernandez was arrested and charged two and a half years ago – has been such that Wiley is not requiring that jurors have never heard of the case. His chief concern, the questionnaire suggests, is finding people who will reliably promise to avoid coverage of the case once it begins.
Indeed, the efforts to control juror behavior in the Internet age – not only preventing them from looking at coverage of the case and trial, but also from doing their own research – have proved increasingly challenging in recent years. Plug "media" and "juries" and "convictions overturned" into Google and up pop examples of recent juror misconduct. Meanwhile, the John F. Kennedy School of Government at Harvard University, in a presentation to state court leaders, received an array of reports from judges and jurors underscoring just how problematic the easy availability of information has proven.
Judges reported jurors accessing social media while in the courtroom. Jurors in great numbers said they thought it both proper and necessary that they be allowed to conduct their own research.
"The jury trial clearly is where new ways of truth seeking are most likely to collide with the requirements of traditional court processes," concluded one report to the Kennedy School. "The potential casualty is fairness."
The jury questionnaire for the Hernandez case, in addition to its requirement on disclosing past drug use and mental health histories, is replete with the more expected inquiries. Are you related to a police officer? Have you ever been involved in litigation? Is English your first language?
But it's also full of questions reflecting both modern times and some other less-than-clear concerns and curiosities.
Question 55: "Do you maintain or post to a blog?"
Question 71: "Have you, a family member, or a close friend, ever worked for the New York City Transit Authority?"
Question 36: "Please describe what your hobbies, interests, or spare time activities are, or what you would like them to be if you had more spare time?"
In our story last month about credit rating agencies and tobacco bonds, we detailed numerous instances in which bankers pressured Standard & Poor's, Fitch and Moody's to give favorable treatment to bond issues being put together on behalf of state and local governments.
Documents showed that the bankers brazenly played one firm against another to relax rating criteria and grade risker, longer-term tobacco bonds. These actions mostly pre-dated the 2008 financial crisis, in which the raters earned widespread criticism for giving high marks to bum mortgage securities packaged by Wall Street.
Now, a new report from the rating agencies' regulator, the Securities and Exchange Commission, found similar conflicts of interest at the firms, which are supposed to evaluate the riskiness of various debts at arm's length from the banks and issuers they serve.
The SEC's annual examination of the firms' business practices, published on the same day as ProPublica's ratings story, cited numerous examples of how the firms continued to compromise the objectivity of their rating process during the 2013 calendar year. For instance:
One of the top three rating firms changed its rating criteria "in a manner that addressed" concerns from business managers and proved advantageous to a trade group that had lobbied for the changes, the SEC said, concluding that "business and market-share concerns influenced the substance of the criteria."
One of the top three rating firms took financial models that were developed by outside parties and used them for its credit rating process – without independently verifying their validity. It turned out that "errors in these third-party models resulted in changes to a substantial number" of the firm's outstanding ratings, the SEC said.
The SEC also uncovered instances of analysts having access to business performance data, such as market share, which could influence their decision making when assigning ratings. The failure to separate analysts from business activity was particularly egregious at one smaller rating firm, which allowed an analytical supervisor to participate in sales and marketing activities for ratings while also participating in determining those ratings.
The SEC's report does not name specific credit rating firms, other than indicating whether they were the three largest firms, S&P, Moody's and Fitch, or their smaller competitors. The SEC also made recommendations for improving their procedures to avoid the problems identified in the report. In statements reacting to the SEC's report, S&P, Moody's and Fitch each said they continue to enhance their policies and procedures.
Rating criteria – the standards that agencies use to evaluate repayment risk across various types of debts – are not supposed to be negotiated for the sake of winning business. But ProPublica found evidence that criteria for tobacco bonds — debts backed by payments from a massive 1998 settlement with cigarette manufacturers — were heavily negotiated by bankers.
In marketing documents collected by ProPublica across 22 tobacco bond offerings, bankers for UBS, Bear Stearns, Citigroup and others repeatedly took credit for getting the firms to bend their criteria. The raters earn hefty fees if they're chosen to rate an issue.
"Bear Stearns is the ONLY firm in two years to have negotiated new rating criteria pertaining to stress tests and tobacco sector fundamentals," the now-defunct investment bank said in a 2005 marketing document typical of the firm's claims of influence over the rating process.
After our story published, Wisconsin responded to a ProPublica public records request with a disc containing dozens of tobacco bond records dating to 2001. They include more claims by bankers saying they had swayed the rating firms.
In 2008, bankers from Lehman Brothers told Wisconsin that S&P had agreed to hear arguments for rating the state's tobacco bonds "even if" the debt couldn't satisfy the firm's "newly-minted, more stringent" rating criteria, according to a proposal submitted by the bank three days after its historic Sept. 15, 2008, bankruptcy.
In a 2007 document from Wisconsin, Bear Stearns said Fitch had published new rating criteria specifically in response to demands it made during a Puerto Rico tobacco deal. The criteria were "negotiated in their entirety during the rating process for our Puerto Rico tobacco transaction," Bear Stearns said in a proposal to handle a potential deal by Wisconsin.
Asked about the document, Fitch said no banker or outside party "unduly influenced" its ratings decisions for tobacco bonds. In statements and interviews, Moody's and S&P also have denied changing their rating criteria for the debt in response to demands from investment bankers.
In 2013, the Justice Department sued S&P for "falsely" representing that "its ratings were objective" when it rated subprime mortgage debts, seeking $5 billion in damages. S&P has said in defense that its ratings simply reflected its "current best judgments" about the debts. The firm may be nearing a $1 billion settlement of the mortgage ratings lawsuit, The New York Times reported on Monday.
Like many of the mortgage securities at the heart of that lawsuit, the riskiest tobacco bonds are now headed for eventual default.
Though the bonds are backed by money states and other governments get under the 1998 tobacco settlement, the amount of the annual payments is linked to cigarette sales, which have fallen faster than expected. That's forced some states and counties to engineer bailouts.
Last August, the SEC adopted rating agency reforms aimed at strengthening the separation between staff who perform the analytical work and business managers.
The reforms hadn't taken effect when the SEC conducted examinations summarized in its report. The new rules will be fully phased-in by June.
Bill Harrington, a former Moody's analyst who looked at ProPublica's collection of tobacco bond documents and the SEC's new report, said he doesn't think the rating agencies have changed.
Until 2010, Harrington worked in the Moody's division that rated complex securities at the heart of the financial crisis. He said he frequently saw managers, analysts and their teams make changes to rating criteria on the fly to satisfy business concerns, such as winning deals and market share.
In comments submitted to the SEC, Harrington has issued similar critiques, helping expose some of the rating-agency conflicts that contributed to the financial crisis. A Moody's spokesman had no immediate comment on Harrington's remarks.
The SEC's latest examination report, Harrington said, shows evidence of more of the same.
"The ugly picture that you saw in 2008 can just repeat itself," Harrington said.
Related coverage: Read more of Cezary Podkul's coverage of tobacco debt.
An online advertising clearinghouse relied on by Google, Yahoo and Facebook is using controversial cookies that come back from the dead to track the web surfing of Verizon customers.
The company, called Turn, is taking advantage of a hidden undeletable number that Verizon uses to monitor customers' habits on their smartphones and tablets. Turn uses the Verizon number to respawn tracking cookies that users have deleted.
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"We are trying to use the most persistent identifier that we can in order to do what we do," Max Ochoa, Turn's chief privacy officer, told ProPublica.
Turn's zombie cookie comes amid a controversy about a new form of tracking the telecom industry has deployed to shadow mobile phone users. Last year, Verizon and AT&T users noticed their carriers were inserting a tracking number into all the Web traffic that transmits from a users' phone – even if the user has tried to opt out.
Users complained that the tracking number could be used by any website they visited from their phone to build a dossier about their behavior – what sites they went to, what apps they used.
In November, AT&T stopped using the number. But Verizon did not, instead assuring users on its website that "it is unlikely that sites and ad entities will attempt to build customer profiles" using its identifiers.
When asked about Turn's use of the Verizon number to respawn tracking cookies, a Verizon spokeswoman said, "We're reviewing the information you shared and will evaluate and take appropriate measures to address."
Turn privacy officer Ochoa said that his company had conversations with Verizon about Turn's use of the Verizon tracking number and said "they were quite satisfied."
Turn's actions were spotted by Stanford researcher Jonathan Mayer, and confirmed by ProPublica's testing.
Turn and Verizon also have a separate marketing partnership that allows Verizon to share anonymized information about its mobile customers. In April, Verizon sponsored a Turn event in New York City called " Bringing Sexy Back to Measurement."
Turn, which calls itself a "Digital Hub," may not be a household name but it is a huge back-end processor of ads on websites.
It works like this: When a user visits a website that contains Turn tracking code, the company holds an auction within milliseconds for advertisers to target that user. The highest bidder's ad instantly appears on the user's screen as the web page loads. Turn says it receives 2 million requests for online advertising placements per second.
For its auctions to work, Turn needs to identify web users by cookies, which are small text files that are stored on their computers. The cookies allow Turn to identify a user's web browsing habits, such as an interest in sports or shopping, which it uses to lure advertisers to the auction.
Some users try to block such tracking by turning off or deleting cookies. But Turn says that when users clear their cookies, it does not consider that a signal that users want to opt out from being tracked.
"There are definitely people who feel that if they clear their cookies, they won't be tracked, and that is not strictly accurate," said Joshua Koran, senior vice president of product management at Turn.
Turn executives said the only way users can opt out is to install a Turn opt-out cookie on their machine. That cookie is not designed to prevent Turn from collecting data about a user - only to prevent Turn from showing targeted ads to that user.
ProPublica's tests showed that even Verizon users who installed the Turn opt-out cookie continued to receive the Turn tracking cookie as well. Turn said despite the appearance of the tracking cookie, it continues to honor the opt-out cookie.
Initially, Turn officials also told ProPublica that its zombie cookie had a benefit for users: They said they were using the Verizon number to keep track of people who installed the Turn opt-out cookie, so that if they mistakenly deleted it, Turn could continue to honor their decisions to opt out.
(Julia Angwin, Mike Tigas and Terry Parris Jr., ProPublica)
But when ProPublica tested that claim on the industry's opt-out system, we found that it did not show Verizon users as opted out. Turn subsequently contacted us to say it had fixed what it said was a glitch, but our tests did not show it had been fixed.
Either way, this fix does not address the respawning of cookies that have been deleted– since Turn says it does not consider that an expression of user intent.
"It is our absolute desire to honor people's choices," said Ochoa, Turn's chief privacy officer.
Since then, the IRS has released long-awaited rules designed to address such aggressive debt collection against the poor. Largely because these new rules fill a void — there were hardly any rules at all — patient advocates agree they are a major step forward.
Even so, they have easily exploitable gaps. It remains up to each hospital, for example, to decide which patients the new rules should apply to. And because the rules only apply to hospitals that have been granted tax-exempt status by the IRS, they don't apply to for-profit hospitals or most public hospitals. ProPublica reported last month that public hospitals can be even more aggressive in collecting debt than nonprofits.
Most hospitals in the U.S. are charitable organizations. They don't pay taxes because they are supposed to be a key part of the safety net for the nation's poor patients. In theory, patients who aren't covered by Medicaid and can't afford insurance — or who are underinsured and can't afford their out-of-pocket costs — can receive necessary care from a nonprofit hospital without facing financial ruin. Each hospital is required to offer services to lower-income patients at a reduced cost and to have a financial assistance policy that states who qualifies for aid, known as "charity care."
But while hospitals are required to have this policy, there have been very few rules on how they publicize it or how they treat patients who qualify. That's where the new rules, which go into effect in 2016, will make the biggest difference. The rules were required as part of the 2010 Affordable Care Act.
At Heartland Regional Medical Center in St. Joseph, the hospital featured in our story, many patients had been sued despite apparently qualifying for financial assistance. In interviews, patients either didn't know the hospital had charity care or wrongly believed they didn't qualify.
Under the new rules, all nonprofit hospitals will be required to post their financial assistance policies on their websites and offer a written, "plain language summary" of them to patients when they're in the hospital. If patients don't apply for assistance or pay their bills, then the hospitals are required to send at least one more summary of the policy, along with mentioning it on billing statements.
And if hospitals plan to sue patients over unpaid bills, they must attempt to verbally tell the patients about their policies, as well as send notices that they are planning to sue and that the patients may qualify for financial assistance.
Hospitals that don't take these steps before suing patients could face the ultimate penalty of losing their tax-exempt status.
That sounds clear enough. But the first catch is that the IRS does not have a history of aggressive enforcement.
"That's always been the problem with the charitable hospital rules," said Corey Davis, an attorney with the National Health Law Program, a nonprofit patient advocacy organization. "The IRS doesn't enforce them and nobody else can enforce them."
The second catch is that hospitals are still responsible for setting their own financial assistance policies, and these protections are only helpful to patients who qualify for help.
"There's all sorts of discretion because [hospitals] just have to have a policy," said Chi Chi Wu of the National Consumer Law Center. The rules don't set a baseline for the type of assistance hospitals must provide, she said.
A hospital could limit aid to uninsured patients with income below the federal poverty line — $11,670 for a single person with no dependents. A hospital could also restrict aid to uninsured patients, excluding patients with bare-bones insurance policies who might face huge out-of-pocket payments.
For patients excluded by the policy, all these protections would be effectively moot. Even those covered by the policy might receive some reduction on cost, but still find themselves pursued over the outstanding balance.
The hospital industry's reaction to the new rules has been muted. A spokeswoman for the American Hospital Association said it had no comment. But best practices for the industry, set by the Healthcare Financial Management Association, urge hospitals to take steps beyond the new rules to ensure patients eligible for financial assistance aren't the target of lawsuits. For example, as we noted in our story, some hospitals automatically identify some patients as eligible without them having to apply.
Jessica Curtis, an attorney with Community Catalyst, a national nonprofit consumer organization, joined other advocates in stressing that the new rules were welcome. But, as before, she said, there will be large variation among hospitals in how generously they treat lower-income patients. "It will come down to: How seriously does the hospital take this issue?" she said.
What one cop said to another after burning a pregnant woman with a flashbang grenade: "Y'all done fucked up." Flashbangs were originally designed for military-style hostage rescues. But these days, local police use them regularly to serve "no-knock" warrants. These modified hand grenades burn hotter than lava, and are used by law enforcement without national training requirements and little oversight. A ProPublica review found 50 people who were maimed, burned or killed from police use of the devices. — ProPublica via @JuliaAngwin
They call this VA center "Candy Land" and the guy who runs it "The Candy Man." The Center for Investigative Reporting examines painkiller prescription rates at a rural Wisconsin VA center under the direction of Dr. David Houlihan. During his tenure, opiate prescriptions quintupled despite a decline in patients seeking care, CIR reports. Staff and pharmacists who have complained about the center's practices have either been fired or resigned in protest. "It's a system that's gone completely haywire," said one whistleblower who quit his position after two months on the job. — The Center of Investigative Reporting via @willcir
When Child Protective Services fails to protect the child. Texas CPS investigates tens of thousands of child abuse and neglect cases every year. In 2009, the Texas Legislature ordered CPS to create public reports of the cases, including details of the abuse, cause of death and CPS' involvement. Of the reports analyzed in an American-Statesman investigation, more than a quarter of the children who died had been involved in multiple CPS investigations. The lack of analysis, the Statesman writes, means that "Texas' child protection workers effectively have been operating with blinders, missing deadly patterns and key pieces of information that could help protect kids." — The Austin American-Statesman via @justiceron and @jinatx
To say abortion opponents are feeling fired up in 2015 would be a massive understatement.
In their first week back at work, congressional Republicans introduced a sweeping prohibition on abortions after 20 weeks of pregnancy (H.R. 36, the Pain-Capable Unborn Child Protection Act), as well as bills that would ban sex-selective abortions, target funding for groups like Planned Parenthood, require abortion providers to have hospital admitting privileges, and let doctors and nurses opt out of providing abortion care, even in emergencies.
In the states, where the 2014 elections gave Republicans control of two-thirds of state legislative chambers, incoming lawmakers also have supersized their abortion agendas.
But abortion is just one issue on the minds of activists focused on reproductive rights. There's also birth control, conscience clauses and personhood. Here are seven key trends and themes to watch for this year.
1. A New Wave of Abortion Restrictions
Despite the GOP-controlled Congress, a Democrat in the White House means that many of the most significant battles over abortion will continue to take place in statehouses and courtrooms, not on Capitol Hill.
Expect to see a torrent of 20-week bans like the one Congress has proposed (13 states already have similar laws on the books). These bills are being advanced by groups like the Susan B. Anthony List; a report by the group's research arm, the Charlotte Lozier Institute, recently noted that in most countries where abortion is legal, the procedure is limited to early pregnancy. "The U.S. is in very rare and unsavory company in allowing abortion [after 20 weeks]," Lozier's president, Chuck Donovan, said in an interview, pointing to China and North Korea as two other outliers. Even if President Obama ends up vetoing some version of the 20-week ban, Donovan said, "It could actually heighten awareness of the issue."
In a few states, lawmakers are expected to dust off retro theories (a Missouri bill, for example, would require women to get permission from the fetus's father to have an abortion, an idea ruled unconstitutional in 1992). An Indiana bill that would make it illegal for doctors to perform an abortion based on a fetal abnormality such as Down syndrome echoes abortion foes' efforts in Ohio, North Dakota and elsewhere to position themselves as protectors of the disabled.
Other bills will be aimed at tightening abortion restrictions already in place— lengthening waiting periods to 72 hours, for example, and making it harder for teens to use judicial bypass procedures to obtain an abortion without their parents' permission. (A new Alabama law gives the fetus in such cases its own attorney.) "It's possibly an easier lift to amend an existing law," said Elizabeth Nash, a senior policy associate at the Guttmacher Institute. "It's smart."
Also on the horizon: a likely clampdown on medical abortions (those induced by drugs). Meanwhile, all sides will be watching to see how the 5th Circuit Court of Appeals, and eventually the U.S. Supreme Court, deals with Texas restrictions known as TRAP, or Targeted Regulation of Abortion Providers, laws — rules that purportedly make clinics, and abortion, safer but could shutter most of the clinics in that state. A key question: how many clinics have to shut down before the TRAP laws create an "undue burden" on women's right to abortion, effectively rendering Roe v. Wade moot?
2. The Rise of Religious Exemptions
This trend has its roots in two recent Supreme Court decisions: last June's Hobby Lobby ruling and the 2013 Windsor case upholding gay marriage.
At the center of Hobby Lobby was the federal Religious Freedom Restoration Act of 1993, which says that the government can only "substantially burden" the exercise of religion if it has a "compelling state interest." The Supreme Court's precedent-shattering interpretation — that RFRA applied to closely held companies like the retailer Hobby Lobby, whose owners objected to the Affordable Care Act's contraception mandate on religious grounds — was "a minefield," Justice Ruth Bader Ginsburg warned.
And sure enough, the past six months have brought an explosion in religious-exemption challenges involving everyone and everything from a Missouri lawmaker who didn't want his teenage daughters to have access to birth control to Native Americans battling federal rules that make it illegal to possess the feathers of certain types of endangered eagles without a permit. (The feathers are used in religious ceremonies.)
Some state lawmakers, meanwhile, have taken inspiration from the Hobby Lobby decision to fight back against the stunning gains of the marriage equality movement since Windsor. They have introduced a deluge of RFRA-type bills that would allow business owners, local government officials, and health care professionals to refuse to provide services to gay people — rent a banquet hall, issue a marriage license, perform in vitro fertilization— that violate their religious beliefs. Same-sex marriage may be the immediate target, but state RFRAs would likely have a much broader impact, said Katherine Franke, co-director of the Center for Gender and Sexuality Law at Columbia, granting "a kind of blanket indemnity from compliance with all sorts of otherwise applicable laws." That could erode not just reproductive and gender rights but eventually, Franke said, protections against race discrimination as well. Catholic hospitals —engaged in high-profile battles with the ACLU in Michigan and elsewhere over limits on reproductive care — would also benefit.
3. Conscience Clauses for Non-religious Groups
Back in Washington, anti-abortion groups have been working to extend religious-type "conscience" exemptions to non-religious organizations — starting with themselves.
Last summer, March for Life— the organization behind the demonstrations in front of the Supreme Court every January 22 on the anniversary of Roe v. Wade — filed a lawsuit demanding an exemption from the ACA's contraception mandate, arguing that it "fundamentally violates" the group's core principles.
"Because they aren't a religious organization, they can't claim an exemption under RFRA," said Casey Mattox, senior counsel at Alliance Defending Freedom, the conservative legal powerhouse that brought the suit. The same is true for many other anti-abortion organizations. "We think we have a conscience claim beyond religious belief," the Lozier Institute's Donovan said. Their argument: Denying abortion opponents the same exemption given to religious groups violates their constitutional right to equal protection.
4. Battles Over Contraception
One of the most striking aspects of the March for Life suit is its assertion that birth control — the hormonal kind, as well as intrauterine devices — are "abortifacients" (meaning they cause abortions). Indeed, the Lozier Institute published a paper last year arguing that emergency contraception is essentially no different from abortion because it purportedly prevents implantation of a fertilized egg. (Women's groups and their allies say the scientific evidence proves otherwise.)
The arguments are part of a larger strategy that reproductive rights advocates say has been gaining strength in recent years, with a major boost from Hobby Lobby. "Birth control is very much in the [anti-abortion] movement's cross-hairs," Guttmacher policy researcher Joerg Dreweke wrote in a recent analysis, "and antiabortion advocates are working to stigmatize contraception by blurring the lines between contraception and abortion."
Last November was supposed to be a turning point for the personhood movement, which argues that establishing the legal rights of "pre-born humans" is the key to overturning Roe. And the 2014 election was a turning point — but not in the way supporters had hoped. A "human life amendment" to North Dakota's constitution that had been expected to win overwhelming approval ended up being trounced at the polls; ditto for a ballot measure in Colorado. The election results triggered what Gualberto Garcia Jones, national policy director for the National Personhood Alliance, called "an existential crisis" for the movement. In a tough-talking post-election analysis on LifeSite News, he warned, "[A] lot has to change."
One sign of change is the emergence of NPA itself. Instead of the statewide ballot measures favored by Personhood USA, the heretofore leader of the movement, NPA will promote what Garcia Jones called "asymmetrical tactics ... engaging the enemy in municipalities and counties that we know we control." Daniel Becker, NPA's Georgia-based president, said he's looking for "opportunities to personalize the child in the womb" via fetal rights legislation on everything from inheritance to adoption. He also favors statutes like those in Alabama and Tennessee that target drug use during pregnancy.
A key goal, Becker said, is "to create tension in the law" that would require courts — and eventually the U.S. Supreme Court — to act. Part of that strategy, he added, is to identify potentially sympathetic judges like the ones on the Alabama Supreme Court (see ProPublica's story about one of those justices here).
As the personhood movement regroups, expect reproductive rights organizations to start talking more about personhood, too — the personhood of the mother-to-be.
"When you look at [these laws] collectively, you cannot miss the fact that people with a capacity for pregnancy have a second-class status in this country," said Lynn Paltrow, executive director of National Advocates for Pregnant Women, which fights measures like the ones Becker supports "They haven't achieved full personhood. That is what the battle really is."
6. A Broader Agenda for Reproductive Rights Activists
For years, protecting Roe v. Wade has been the almost singular focus of reproductive rights advocates. But more recently, many have become convinced that narrow focus could spell doom. The ideological divide over "choice" vs. "life" "doesn't fit the reality of many families," said Denicia Cadena of the New Mexico group Young Women United. In many parts of the country, even among those who favor abortion rights, abortion is a topic that "stops conversations," said Monica Simpson, executive director of SisterSong, which focuses on the South. "It shuts people down."
The soul-searching — some of it painfully public— has led to a shift that will become more evident in 2015.
Advocates in a number of states are focusing on proactive bills that aim to improve the lives of women and children by raising the minimum wage, requiring paid sick leave, strengthening protections against pregnancy discrimination, and pressing for education and criminal justice reforms. More groups are talking about the intersection between LGBT and reproductive issues, often in the context of transgender health. There is, said Simpson, less talk about "choice" and more about "justice."
Meanwhile, groups such as the recently formed CoreAlign are working with allies in conservative areas to develop a 30-year strategic plan that might reframe reproductive rights issues and transform public opinion. One part of the plan: Training a new generation of leaders — many from communities of color — who can see it through. Andrea Miller, president of the National Institute for Reproductive Health, a think tank that supports state activists, pointed out that anti-abortion groups did much the same thing, with considerable success. "They started local. They made a coordinated effort to work their ways into the legislative and political process, and eventually they created a tipping point," Miller said.
Which is not to say that reproductive rights groups are abandoning their core issue. Last year saw the introduction of more new state laws protecting abortion than at any time since 1990.
7. The California Exception
For reproductive rights advocates, California has been one of the few bright spots in recent years. In 2013, for example, the state passed a law that allowed trained non-doctors to perform first-trimester abortions — the largest expansion of abortion access in the U.S. in a decade. Researchers affiliated with the University of California–San Francisco are expected to publish more studies on abortion safety —as well as the real-world consequences of preventing women who want abortions from having them. This research has been influential well beyond the state's borders.
Which is one reason anti-abortion groups are paying such close attention to the next big California case on the horizon: A determination by insurance regulators last year that every health plan in the state must cover all maternity-related services, including abortion — even plans offered by Catholic schools and hospitals. Americans Defending Freedom has filed a complaint with the U.S. Department of Health and Human Services, and religious and anti-abortion groups are girding for an epic battle.
Tech company Turn said it would stop using tracking cookies that are impossible to delete. The decision came in response to a ProPublica article this week that revealed the controversial practice.
"We have heard the concerns and are actively re-evaluating this method," Max Ochoa, Turn's chief privacy officer, wrote in a blog post.
He said the company plans aims to suspend the practice by "early February."
Turn's zombie cookie was exploiting a hidden undeletable number that Verizon uses to track its customers on their smartphones on tablets. Turn used the Verizon number to respawn tracking cookies that users had deleted. The company said it will now re-evaluate its practices.
Turn's decision to suspend the practice was a sharp reversal from its previous stance. It had previously argued that "clearing cookies is not a reliable way for a user to express their desire not to receive tailored advertising."
When French special forces wanted to stun the hostage takers at the kosher supermarket in Paris, they threw flashbangs – modified grenades that emit a blinding flash of light and ear-piercing noise. But American police departments are tossing these same military-style devices into American homes routinely, with sometimes horrifying results, ProPublica's Julia Angwin says on the podcast.
In her latest report, co-published with the Atlantic, Angwin details how the flash powder in these grenades burn at a temperature hotter than lava and have seriously injured or killed at least 50 Americans, including police officers, since 2000. Yet Angwin found no criminal convictions against police officers who harmed civilians with these devices.
“You can’t really talk about flashbangs without talking about the baby who was almost killed by a flashbang,” Angwin tells Editor-in-Chief Steve Engelberg. The 19-month-old, Bou Bou Phonesavanh, was nearly killed when police threw a flashbang into the crib where he was sleeping during a predawn drug raid. Bou Bou's nose was blown off, and his chest blown open. In the end, no drugs were found, and the suspect was at another house.
Some police departments have incorporated flashbangs into nearly every raid, even for misdemeanor offenses. In Little Rock, Ark., between 2011 and 2013, SWAT teams threw flashbangs into homes in 84 percent of raids –mostly in predominantly black neighborhoods, according to the ACLU.
Despite the prevalence of flashbangs, there are no national training requirements for the police who use them. And it's not easy for people injured by flashbangs to win lawsuits against police, since courts have ruled that flashbangs are a reasonable use of force if officers look before they toss them.
This week, the U.S. Supreme Court will take up one of the most important civil rights cases of the last decade. If you’ve never heard of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, you have company. The issue of housing segregation has never captivated the nation’s attention like affirmative action or voting rights.
“This case has as broad of a reach as anything the court has decided in the last 10 years,” said Myron Orfield, director of the Institute on Metropolitan Opportunity at the University of Minnesota Law School, because housing segregation is the foundation of racial inequality in the United States.
The case concerns whether the Fair Housing Act, which sought to end the longstanding segregation of America’s neighborhoods, should be read to only bar intentional discrimination. For four decades, federal courts have held that the law should be interpreted more broadly, ruling again and again that if the policies of governmental agencies, banks or private real estate companies unjustifiably perpetuate segregation, regardless of their intent, they could be found in violation of the Fair Housing Act.
All 11 of the federal circuit courts that have considered the question have seen it that way. As well, the U.S. Department of Housing and Urban Development, the agency charged with administering the act, issued a regulation enshrining the principle in 2013.
The nation’s highest court does not typically intervene in cases unless there’s been disagreement in the lower courts. But this court has been determined to have its say on the housing issue and the legal theory that has come to be known as “disparate impact.” The Texas case marks the third effort in as many years by the current justices to consider the intent and reach of the housing act. The other two cases were withdrawn or settled in deals reached before oral arguments, as fair housing advocates feared they would lose before the Roberts Court.
“It is unusual for the Court to agree to hear a case when the law is clearly settled. It’s even more unusual to agree to hear the issue three years in a row,” said Ian Haney López, a University of California, Berkeley law professor.
The Texas case involves a nonprofit organization that works to promote integrated communities and the Texas state housing authority. The nonprofit, Inclusive Communities, showed that nearly all the affordable housing tax credits approved by the Texas housing agency had been assigned to Dallas’ black neighborhoods and almost none of it to white neighborhoods. A federal judge did not find intentional discrimination on the part of Texas officials, but held that the outcome unacceptably increased housing segregation and that the housing agency could have taken steps to ensure that affordable housing units were allotted more equally.
Texas appealed the ruling, raising the stakes when it decided to challenge whether the Fair Housing Act allowed such “disparate impact” rulings at all.
“Those who care about eradicating housing discrimination have to be very concerned about the Supreme Court taking this case,” said Erwin Chemerinsky, dean of the University of California School of Law, where he is a constitutional scholar.
Elizabeth Julian, president of the Inclusive Communities Project and the former Assistant Secretary of Fair Housing and Equal Opportunity at HUD, is among those who are worried.
“Reversing essentially four decades of case law would send a message that is very concerning,” Julian said.
A few generations ago, most housing discrimination was overt. Banks openly refused to lend to black homebuyers. Public housing officials used to announce that certain developments were for white residents, others for Latinos. But the nature of housing segregation has evolved over the years, and the fight against it has had to change as well. Today, banks may well charge higher loan rates in certain communities, but they can also insist it has nothing to do with those neighborhoods being black or Latino. Local planning boards can concede that most affordable housing efforts have been placed in black neighborhoods, but maintain that it was not by malicious design.
The theory of disparate impact, then, has often been the only tool to address ongoing housing discrimination. Landlords or lenders who implement policies or practices that disproportionately impact racial minorities can be found in violation of civil rights law if they cannot justify those practices – even if no one can show they acted out of racial animus.
A fair housing group used disparate impact to topple a “blood relative” ordinance passed by nearly all-white St. Bernard’s Parish in the wake of Hurricane Katrina. The ordinance barred homeowners from renting to anyone who was not kin. Civil rights lawyers were convinced officials passed this law to keep out black renters, but could not prove racist motivations. But when St. Bernard’s Parish could not come up with a plausible justification for the ordinance, a court struck it down.
This tool, for the first time, is in real jeopardy.
The Supreme Court has been weakening many civil rights protections for decades. The Rehnquist Court, for instance, was known for getting the courts out of the business of addressing racial inequities. But the Roberts Court has gone a critical step further, severely curbing efforts undertaken by Congress and the executive branch to address our nation’s long history of discrimination.
“The Supreme Court is newly aggressive in the area of race,” said Haney López. It is targeting efforts by other branches of society to remedy segregation and is striking them down.”
Strikingly, if it ultimately rules against Inclusive Communities, in under a decade the Roberts Court will have limited pivotal protections in each of the three landmark civil rights laws passed in the 1960s: the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1968 Fair Housing Act.
The Court’s aggressive tack has been welcomed by conservative groups, who believe the 14th Amendment of the Constitution, intended to ensure former slaves equality under the law, requires strict legal colorblindness.
The Pacific Legal Foundation, an advocacy organization that promotes individual rights, has long looked forward to a showdown over the Fair Housing Act. It filed an amicus brief in support of the Texas housing agency..
Ralph Kasarda, a lawyer at the Pacific Legal Foundation, said that disparate impact puts an unfair burden on landlords, lenders and local governments.
He gives this example. A landlord requires a certain credit score for renters in order to ensure that they will pay their rent. For a host of societal reasons, African Americans and Latinos tend to have lower credit scores. The landlord could find himself defending against a fair housing suit for a race-neutral policy.
“The problem that I have is imposing liability on someone for doing something without any intent to harm someone,” Kasarda said.
Of course, even under the legal theory of disparate impact, legitimate business practices that can be justified do not violate the law even if they lead to different results among different racial groups.
But the Pacific Legal Foundation’s chief gripe is race consciousness itself.
In order for Texas housing officials to ensure they were allotting subsidized housing in a racially balanced way, they would have had to take into account the racial makeup of the communities where the housing was to go. Kasarda and others argue that race-conscious policies designed to help racial minorities are no better than those designed to harm them.
“You have the case where a government or organization might resort to race-based decisions to avoid disparate impact,” he said. “The Pacific Legal Foundation believes that is unconstitutional.”
Julian, of Inclusive Communities, doesn’t buy the conservative argument. The Fair Housing Act was designed to address the effects of racial segregation, she said.
“It doesn’t require getting into the hearts and minds of people and motives of individuals because at the end of the day the motives don’t matter. It’s the perpetuation of segregation that is the harm,” Julian said.
She offered an analogy: Say a driver is texting and hits someone with her car and puts them in the hospital.
“The fact that you did not mean to is beside the point,” Julian said. “No, you didn’t mean to hit them, but you are going to be held accountable because you engaged in behavior that you knew could cause harm, and you did it anyway.”
The end of disparate impact policies and cases, she argued, would severely hamper advocates’ ability to go after systemic housing discrimination in a nation where the segregation of black Americans has barely budged in many cities and where it is growing for Latinos. “It would be taken as a greenlight to say you can do anything you want, as long as you do not have the offending email.”
Sen. Charles Grassley said nonprofit hospitals could be breaking the law when they sue poor patients over unpaid bills and issued a stern warning to one Missouri hospital that he hopes reverberates nationwide.
Citing a ProPublica and NPR report, Grassley, R-Iowa, sent a letter Friday to Heartland Regional Medical Center, a nonprofit hospital in St. Joseph, Missouri, that has seized the wages of thousands of lower income workers who were unable to pay their medical bills.
Under federal law, tax-exempt hospitals are supposed to provide care to those who can't afford it, but the requirements are fairly vague. Even so, Grassley said the hospital, which recently rebranded as Mosaic Life Care, had, at a minimum, stretched the law to the breaking point. In his letter to Mosaic's CEO, Grassley wrote that the hospital "may not be meeting the requirements to be a nonprofit, tax exempt hospital." He also asked a battery of questions about the hospital's treatment of lower-income patients, its debt collection practices, and how it administers financial assistance.
"Reports detail a number of instances where Mosaic failed to identify patients who would qualify for financial assistance and who have since been subject to abusive billing and collection practices," Grassley wrote. "The practices appear to be extremely punitive and unfair to both low income patients and taxpayers who subsidize charitable hospitals' tax breaks."
As ProPublica and NPR reported, the hospital has its own for-profit debt collection subsidiary, Northwest Financial Services, which files thousands of lawsuits each year. From 2009 through 2013, the company garnished the pay of about 6,000 people and seized at least $12 million.
In response to the story, the hospital announced a review of its debt collection practices. Tama Wagner, chief brand officer for Mosaic, said the hospital expected that new recommendations would be presented to the hospital's board next month. "Our goal is to do the right thing," she said.
In an interview, Grassley said the issue of nonprofit hospitals dodging their charitable responsibilities is not a new one. About a decade ago, as the chair of the finance committee, he launched an investigation into just what these hospitals were doing to warrant their valuable tax exemptions.
Grassley, now chair of the judiciary committee, said he was "astounded" that, years later, some hospitals continued to aggressively pursue the debts of poor patients who should have qualified for financial assistance. He'd hoped that Congressional focus on the issue would have persuaded hospitals to fulfill their mandate, he said, but "some hospitals, you hit them over the head with a two-by-four, and they still don't get the message."
The 2010 Affordable Care Act contains a provision, co-authored by Grassley, which requires hospitals to make "reasonable efforts" to determine whether patients qualify for financial assistance before taking an aggressive step like filing a lawsuit. It didn't appear that Mosaic had made such efforts, said Grassley. As ProPublica and NPR reported, the hospital said it had publicized its financial assistance policy in a number of ways. But Mosaic put the onus on patients to actively seek assistance and said those that didn't, and had their wages garnished as a result, were truly at fault.
Mosaic Life Care has its own for-profit debt collection subsidiary, which files thousands of lawsuits each year. (Steve Hebert for ProPublica)
"It seems like Mosaic turned [the law] on its head," said Grassley. The primary responsibility for identifying patients who need assistance lies with the hospitals, he said.
Grassley acknowledged this, but said he hoped his focus on Mosaic's debt collection practices would remind other hospitals of "their humanitarian responsibilities" and "the responsibilities they have as a nonprofit."
If they don't change their behavior voluntarily, Grassley said, their responsibilities may have to be spelled out in law.
"If they don't get the message now," he said, "we'll have to work towards getting the ideal language in the legislation."
