All posts by MuniCourts

Who’s More Likely to Be Audited: A Person Making $20,000 — or $400,000?

If you claim the earned income tax credit, whose average recipient makes less than $20,000 a year, you’re more likely to face IRS scrutiny than someone making twenty times as much. How a benefit for the working poor was turned against them.

by Paul Kiel and Jesse Eisinger,

When Natassia Smick, 28, filed her family’s taxes in January, she already had plans for the refund she and her husband expected to receive. Mainly, she wanted to catch up on her credit card debt. And she was pregnant with their second child, so there were plenty of extra expenses ahead.

The earned income tax credit is supposed to be a boon for low-income families like Natassia Smick’s. But, as she’s found, claiming the credit often prompts a grueling, slow-moving review by the IRS.

Since Smick, who is taking classes toward a bachelor’s degree, and her husband, a chef, together earned around $33,000 in 2017, about $2,000 of that refund would come from the earned income tax credit. It’s among the government’s largest anti-poverty programs, sending more than $60 billion every year to families like Smick’s: people who have jobs but are struggling to get by. Last year, 28 million households claimed the EITC.

Smick, who lives outside Los Angeles, thought she’d get her refund in a month or so, as she had the year before. But no refund came. Instead, she got a letter from the IRS saying it was “conducting a thorough review” of her return. She didn’t need to do anything, it said. Smick waited as patiently as she could. She called the IRS and was told to wait some more.

It wasn’t until four months later, in July, that she got her next letter. The IRS informed her that she was being audited. She had 30 days to provide “supporting documentation” for basically everything. As she understood it, she needed to prove that she and her husband had earned what they’d earned and that her child was her child.

By this point, Smick was home with her baby. She set about rounding up W-2s, paycheck stubs, bank statements and birth certificates. Proving that her 4-year-old had lived at the family’s address for most of the year, as the EITC requires, was the hardest thing, but she did her best with medical records, some papers from his day care, and whatever else she could think of.

She sent it all off and hoped for a quick resolution, but the next IRS letter quashed that hope. The IRS said it would review her response by Feb. 16, 2019 — six months away. Collectors were calling about the credit card bills. She didn’t know how she’d make it that long.

Smick couldn’t understand why this was happening. All she had done was answer the questions on TurboTax. Isn’t it rich people who get audited? “We have nothing,” she said, “and it’s just frustrating knowing that we have nothing.”

It seemed there was nothing she could do. And when she called the IRS to ask how it could possibly take so long to review her documents, she remembers being told that there was nothing they could do, either: The IRS was “extremely short staffed,” the person said.

Budget cuts have crippled the IRS over the past eight years. Enforcement staff has dropped by a third. But while the number of audits has fallen across the board, the impact has been different for the rich and poor. For wealthy taxpayers, the story has been rosy: Not only has the audit rate been cut in half, but audits now tend to be less thorough.

It’s a different story for people who receive the EITC: The audit rate has fallen less steeply and the experience of being audited has become more punishing. Because of a 2015 law, EITC recipients are now more likely to have their refund held, something that can be calamitous for someone living month-to-month.

IRS computers choose people to audit, but if those taxpayers respond, a person must review the documents. With fewer employees to do that, delays have mounted in a process that was already arduous, according to several attorneys who represent taxpayers through the Low Income Taxpayer Clinic program. It regularly takes more than a year to get a taxpayer’s refund released, they said, even for those who are represented.

“If the service doesn’t have the personnel to evaluate evidence submitted in a timely manner, then they should not be initiating the exams in the first place,” said Mandi Matlock, an attorney with Texas RioGrande Legal Aid.

Generally, the more money you make, the more likely you are to be audited. EITC recipients, whose typical annual income is under $20,000, have long been the major exception. That’s because many people claim the credit in error, and, under consistent pressure from Republicans in Congress to curtail those overpayments, the IRS has kept the audit rate higher. Meanwhile, there hasn’t been similar pressure to address more costly problem areas, like tax evasion by business owners.

The budget cuts and staff losses have made this distortion starker. The richest taxpayers are still audited at higher rates than the poorest, but the gap is closing.

“What happens is you have people at the very top being prioritized and people at the very bottom being prioritized, and everyone else is sort of squeezed out,” said John Dalrymple, who retired last year as deputy commissioner of the IRS. In 2017, EITC recipients were audited at twice the rate of taxpayers with income between $200,000 and $500,000. Only households with income above $1 million were examined at significantly higher rates.

Put another way, as the IRS has dwindled in size and capability, audits of the poor have accounted for more of what it does. Last year, the IRS audited 381,000 recipients of the EITC. That was 36 percent of all audits the IRS conducted, up from 33 percent in 2011, when the budget cuts began.

“Those struggling to make ends meet are being unfairly audited while the fortunate few dodge taxes without consequence,” Sen. Ron Wyden, D-Ore., the ranking member on the Senate Finance Committee, told ProPublica. “The IRS needs more manpower to go after tax cheats of all sizes, and working Americans need a simpler way of obtaining a tax credit they’ve earned.”

The IRS declined to answer questions about its EITC audits.

The EITC has bipartisan roots. Conceived as a “work bonus” for low-income wage earners in the 1970’s and an alternative to welfare, the program has grown over the decades with the support of Republicans and Democrats. These days, the average credit is for about $2,500, but for larger families, the amount can exceed $6,000. The Census Bureau recently estimated that the EITC and the child tax credit together boost millions of children out of poverty every year, more than any other government program.

Unlike Social Security or food stamps, the EITC has no application process. Instead, taxpayers simply claim the credit on their tax returns. Millions of people get it wrong in both directions, according to IRS estimates. About a fifth of eligible taxpayers don’t seek the EITC. And almost a quarter of the $74 billion paid out this year was issued “improperly.”

That estimate of “improper payments,” about $17 billion, is the reason the EITC is such a focus for the IRS. Some tax experts — including the Taxpayer Advocate Service, an independent office within the IRS — argue the estimate is way too high. One reason is that it is based on the outcome of audits, and low-income taxpayers are much less likely to have competent representation to dispute the IRS’ conclusions.

Regardless of the precise error rate, the IRS acknowledges the primary cause of the problem is not fraud: It is the law itself. It is too complex, too easy for someone to think themselves eligible when they are not. The same child might be a “dependent,” for example, but not a “qualifying child” under the EITC, and the IRS’ instructions for claiming the credit run to 41 pages.

“My third-year law students, they sit down and study this material, and sometimes they still don’t get it,” said Michelle Lyon Drumbl, a professor at Washington and Lee School of Law.

Since the 1990s, Republicans in Congress have focused on these improper payments as a major problem and harshly criticized the IRS for failing to stop them. In 2015, the Republican Congress passed, and President Barack Obama signed, a bill that required the IRS to hold EITC refunds until Feb. 15 each year. The purpose was to give the IRS more time to match tax returns with the corresponding W-2s to avoid misstatements of income. But it also meant people who are audited are more likely to see their refund held — instead of receiving the credit and then undergoing audit. That’s a crucial difference for low-income taxpayers.

“You expect this money during tax season and you don’t get it… It tears you down,” said Paul McCaw, a forklift operator in Rock Island, Illinois. He had refunds held for several years in a row because the IRS doubted that his niece’s three young children lived with him. For years, the family struggled. Bills piled up and eviction was a constant threat. Finally, this year, with the help of a legal aid attorney at Prairie State Legal Services, Macaw, 50, was able to convince the IRS to release the refunds.

“I was just beside myself,” he said of finally getting his refunds, adding, “I caught everything all up, and I also paid a month in advance.”

Stopping faulty refunds from going out, rather than trying to recoup them through an audit is “always the better option” because it is more effective, said Jesse Solis, a spokesperson for House Ways and Means Committee chair Kevin Brady, R-Texas. Congress should continue to look for ways to reduce improper payments, he said.

Taxpayers of all kinds cheat. And IRS studies have found that EITC recipients aren’t close to the worst offenders. For certain kinds of business income, for instance, people pay only about 37 percent of the tax they owe because they simply don’t report the income. Hundreds of billions of dollars in government revenue is lost. But people who have their own businesses are audited at about the same rate as EITC recipients.

The IRS’ disproportionate focus on stopping EITC “improper payments” is misguided, said Nina Olson, the national taxpayer advocate. “What’s the difference between an erroneous EITC dollar being sent out and a dollar attributed to unreported self-employment income not collected?” she asked. Unreported business income is “where the real money is,” she said.

When EITC cheating does occur, the culprits are usually tax preparers, said Chi Chi Wu of the National Consumer Law Center. “They know the system, they game the system and ultimately the taxpayer ends up on the hook if there’s an audit,” she said. In undercover investigations by the NCLC and the Government Accountability Office, multiple preparers advised taxpayers to file bogus EITC claims.

About 60 percent of taxpayers use a preparer, but in most states, preparers are not required to be licensed, and the IRS’ ability to oversee them is limited. After the agency launched a program to certify preparers and subject them to regular compliance checks, a federal appeals court ruled in 2014 that the IRS doesn’t have that power. Congress could pass a bill to confer such authority on the agency, but it has not done so, despite some bipartisan support for the idea.

The IRS has a difficult task in auditing taxpayers who claim the EITC. Low-income families are often complicated; they’re more likely to be multi-generational than more affluent filers, for instance, or to add or subtract household members from year to year. A study by the nonpartisan Tax Policy Center found that only about 48 percent of low-income households with children were married couples, while for other households it was 75 percent.

But advocates for taxpayers say the IRS makes the situation needlessly worse. Virtually all the EITC audits are conducted by correspondence, and the computer-generated letters are far from simple. A survey by the Taxpayer Advocate Service found that more than a quarter of EITC recipients who were audited didn’t even understand that they were under audit.

“When I first got audited, I couldn’t figure out what was going on,” said Denise Canady, 62, of West Memphis, Arkansas, who at the time was earning $8.50 an hour as a home health aide. The audit sent her on a scramble to get documents from her granddaughter’s doctor, pharmacy, hospital and school that would demonstrate that the toddler had lived at her address. “A lot of people don’t want to give you old records,” she said.

She eventually found her way to Legal Aid of Arkansas, where an attorney helped bolster her case, but, a year after her audit began, she is still awaiting the outcome.

“I pray and hope,” she said.


Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom. 

Everything You Learned About Thanksgiving Is Wrong

Unless you're among the handful of people who were taught the truth, much of what you know about Thanksgiving is mythology. America's history is full of half truths and outright lies. Just about everything I was taught about America when I was a child was fake, including the myth of Thanksgiving

What do you know about indigenous communities of people that we incorrectly refer to as Indians or Native Americans? The information you've accepted as fact, such as the story about Pocahontas is fake news.  

There are currently 573 federally recognized tribes in the United State. Last month, our nation celebrated Columbus Day, celebrating a man responsible for unspeakable atrocities against millions of native people.  

My brainwashing about how great America was began in kindergarten when I was taught the Pledge of Allegiance, "I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all." Fast forward 40 plus years to Colin Kaepernick's protest of the National Anthem, which  highlighted not everyone enjoyed justice or liberty. Ironically, the "Star-Spangled Banner" as originally written, glorified the deaths of slaves who were actually fighting for their freedom which includes justice and liberty. However, that was never mentioned in school.

The Fourth of July (Independence Day) celebrates the creation of a country where my ancestors were still enslaved!  Even the story about George Washington being the first president of the United States is not entirely true! Keep in mind that George Washington wasn't elected president until 1788 and inaugurated in 1789. The Continential Congress began in 1774 and the Declaration of Independence was signed in 1776. Who ran things between 1774 – 1788 before Washington was elected?

There were 15 presidents prior to Washington. Peyton Randolph was the first of eight presidents of the Continental Congress, John Hancock was president when the "Declaration of Independence" was signed in 1776; which probably explains the large signature. Samuel Huntington was the last president of the Continental Congress and the first of ten presidents under the Articles of Confederation.  John Hanson, the third president under the Articles of Confederation is responsible for establishing Thanksgiving as the fourth Thursday in November in 1782.

The American public is becoming more aware of historical misinformation. Attempts to remove monuments to despicable people and ideology have begun and real change has happened. Many cities celebrate Indigenous Peoples Day instead of Columbus Day and Columbus, OH for the first time this year chose not to celebrate its namesake.  

“Above all, don't lie to yourself. The man who lies to himself and listens to his own lie comes to a point that he cannot distinguish the truth within him, or around him, and so loses all respect for himself and for others. And having no respect he ceases to love.”

Some people are so indoctrinated in American propaganda, they can't or refuse to see the truth. American was built on stolen land and made rich by stolen labor and lives.

The 1790 Naturalization Act permitted only "free white persons" to become naturalized citizens, thus opening the doors to European immigrants but not others. Only citizens could vote, serve on juries, hold office, and in some cases, even hold property. 

The 1830 Indian Removal Act forcibly relocated Cherokee, Creeks and other eastern Indians to west of the Mississippi River to make room for white settlers. The 1862 Homestead Act gave away millions of acres of what had been Indian Territory west of the Mississippi. 

Indigenous people and people of color had their land stolen, their rights stripped away, were artifically held back by law, placed under restrictions and oppressed.

Don't let others tell you to forget about the past. Forgeting or lying about the past is the same as erasing your future. 

“Pretty Much a Failure”: HUD Inspections Pass Dangerous Apartments Filled With Rats, Roaches and Toxic Mold

The system for inspecting federally subsidized properties is failing low-income families, seniors and people with disabilities and undermining the agency’s oversight.

by Molly Parker, The Southern Illinoisan

In the winter of 2017, a toddler was rushed to the emergency room after swallowing rodent poison inside her family’s unit at the federally subsidized Clay Arsenal Renaissance Apartments in Hartford, Connecticut. Her mother had placed sticky traps throughout the house after another one of her children was bitten on the arm by a mouse, according to a local housing advocate who worked with the family.

A child peeks out the door of the apartment where she lived with her mother and two sisters in rural southern Illinois.

This August, Missouri Attorney General Josh Hawley sued the St. Louis Housing Authority and the private management company it hired to run the Clinton-Peabody Housing Complex, saying they both violated the state’s consumer protection laws by advertising that the development was habitable even though it was plagued by a pest infestation, black mold and water damage.

That same month, residents of Texas Coppertree Village Apartments in Houston filed suit against the U.S. Department of Housing and Urban Development, saying the federal government had failed to hold their landlord accountable for deplorable conditions and criminal activity at the federally subsidized complex, including rapes, aggravated assaults and robberies.

In all three cases, despite well-known, long-standing problems, the properties had passed their most-recent inspections mandated by HUD.

Apartment complexes subsidized by HUD collectively house more than 2 million low-income families around the country. Some are run by public housing authorities and others are owned by private for-profit or nonprofit landlords. By law, the owners of such complexes must pass inspections demonstrating they are decent, safe and sanitary in exchange for millions of dollars in federal money each year.

But as thousands of renters across the country have discovered, passing scores on HUD inspections often don’t match the reality of renters’ living conditions. The two-decade-old inspection system — the federal housing agency’s primary oversight tool — is failing low-income families, seniors and people with disabilities and undermining the agency’s oversight of billions of dollars in taxpayer-funded rental subsidies, an investigation by The Southern Illinoisan and ProPublica has found.

HUD has given passing inspection grades for years to dangerous buildings filled with rats and roaches, toxic mold and peeling lead-based paint, which can cause lifelong learning delays when ingested by young children. The same goes for buildings where people with disabilities have been stranded in high-rise apartments without working elevators, or where raw sewage backs up into bathtubs and utility drains. The agency has passed buildings where ceilings are caving in and the heat won’t kick on in frigid winter months as old boiler systems give out.

The failure of HUD’s inspection system has been on display in the southern Illinois towns of Cairo and East St. Louis, which have had their public housing taken over by HUD. In both towns, complexes received passing scores as decades-old buildings deteriorated.

HUD’s inspection system “is pretty much a failure,” and the agency’s staffing levels after years of budget cuts are “wholly inadequate” to assess properties, said Sara Pratt, a former senior HUD official who worked at the agency under Presidents Bill Clinton and Barack Obama.

Kate Walz, director of housing justice with the Sargent Shriver National Center on Poverty Law, a social justice and legal advocacy organization based in Chicago, said, “We just shake our heads sometimes.”

“Some owners fail an inspection and they have a great building, and some owners pass it, and they have just a horrible building,” she added. “We’re running up against this all the time.”

The McBride housing development in Cairo, Illinois’ southernmost city, was shuttered after HUD determined it was uninhabitable last year.

The consequences of these failures are made more severe by the paucity of affordable housing in communities across the country. Nearly one in five of the nation’s 43 million renters spend more than half of their income on housing, according to an April report by The Pew Charitable Trusts. With few alternatives available to families who live in deep poverty, many choose to stay where they are and endure their conditions rather than complain and risk eviction and homelessness.

That’s why it’s critical that HUD ensures the safety and stability of government-funded housing units set aside for low-income families, housing advocates say. It’s a difficult charge given that the vast majority of these apartments are decades old, and many of them have gone without routine maintenance for years.

Representatives of the Clay Arsenal Renaissance Apartments have said that they tried to fix problems there and that the property’s passing scores meant it met HUD’s standards. After a yearslong effort led by tenants, HUD ended its contract with the owner in May. The St. Louis Housing Authority did not respond to a call seeking comment, but in news reports it said that efforts have been made to improve conditions at Clinton-Peabody, including by addressing the mice problem. And after tenants of the Texas Coppertree Village Apartments filed suit against HUD, inspectors gave the building a failing score and HUD has issued two default notices to its owner. HUD’s response to the tenants’ lawsuit was due on Tuesday, but the department has sought an extension.

The Southern emailed a synopsis of its findings to a HUD spokesman several weeks ago. The agency declined to comment in detail. HUD spokesman Jereon Brown said in an email that “the perfect system hasn’t been, and probably will not be designed. That given, the agency continues to learn and we realize the challenges of a 20-year old system.”

HUD declined to make Secretary Ben Carson available for an interview, but in late October, Carson shared a two-page statement on Twitter that said he “directed a wholesale reexamination” of how the department conducts inspections. Carson wrote that the agency is exploring “immediate improvements and those refinements over the long-term.”

The letter did not elaborate on those changes or when additional details would be made public.

“We’re simply signaling that change is coming,” Brown said. “The details will be released when we’re convinced we have a system that will better serve the residents.”

HUD’s inspection system was born out of political fallout from the agency’s previous oversight failures.

“HUD has been plagued for years by scandal and mismanagement,” then-HUD Secretary Andrew Cuomo told lawmakers during a Senate hearing in 1997, announcing a reform plan, of which standardized inspections was a central feature. In the 1980s, he said, HUD was the “poster child for fraud, waste and abuse.”

“At the time, if you knew HUD at all, you knew it through its failures,” Cuomo said, citing as examples Cabrini-Green in Chicago and Pruitt-Igoe in St. Louis, large public housing complexes that have since been leveled.

Facing calls for his department’s elimination, Cuomo called for the creation of a Real Estate Assessment Center within HUD, which would largely rely on contractors to assess the financial and physical conditions of landlords managing HUD-subsidized properties.

All properties are supposed to be inspected at least once every three years, and poorer performing ones more often. HUD also has the ability to perform an inspection at other times in response to complaints by tenants or others. Scores are issued on a 100-point scale, with a 60 needed to pass. After the inspection, landlords receive a list of all life-threatening health and safety violations, and they have three days to fix those problems. If a privately owned property fails with a score below 30 or has two consecutive scores below 60, it is referred for enforcement action, which can include termination of a contract.

A broken window inside the bedroom of an apartment at the Samuel Gompers Homes, part of the East St. Louis Housing Authority.

HUD survived the 1990s, but not before Congress cut a quarter of its annual budget and ordered a massive downsizing. The agency’s workforce has been reduced by more than half since the mid-1980s, from roughly 17,000 to about 8,000.

HUD has fielded complaints for years about flaws with its inspection system, particularly with respect to its complicated scoring algorithm that struggles to tell the difference between unsafe properties and decent ones, said Mike Gantt, senior vice president of The Inspection Group, a consulting company that helps properties prepare for their inspections.

“Many people have believed these scores to be largely meaningless for nearly 20 years, and this includes many HUD officials who will say so privately,” Gantt said. “This is not a newly discovered problem. Any claim to the contrary amounts to a cover up or ignorance of historical fact.”

Through a spokesman, Cuomo, now the governor of New York, defended the creation of the inspection system in the 1990s, saying that before it, there was no uniform system for inspecting federally subsidized housing across the nation. But spokesman Tyrone Stevens added that, with the passing of two decades and a dropoff in federal funding and oversight, Cuomo believes the system needs to be reevaluated.

The system’s flaws were brought into sharp relief a few years ago, when deplorable conditions in apartment buildings owned by the nonprofit Global Ministries Foundation prompted news reports and a 2016 Senate hearing that called into question HUD’s oversight.

Over a number of years, the nonprofit and a subsidiary had purchased 60 properties for low-income residents in Alabama, Florida, Georgia, Indiana, Louisiana, New York, North Carolina and Tennessee. The nonprofit, run by an evangelical minister in Memphis, Tennessee, named Richard Hamlet, entered into contracts with HUD to house thousands of tenants in about 40 of the properties.

By 2014, Global Ministries was receiving about $40 million in federal funds annually to offset reduced rents through HUD’s project-based Section 8 program.

Internally, HUD officials were raising serious questions about the conditions at the properties, said John Gemmill, who retired from the department in 2016 as director of the agency’s Memphis office. But externally, little happened, and tenants suffered.

When Cynthia Crawford moved into Warren Apartments in Memphis in 2013, she was desperate for a place to live. For nearly four years prior, she had been homeless, bouncing between friends’ couches and shelters. Her children were in foster care, and to get them back, she had to have a home. But the conditions they endured were horrendous. “These were not just any house mice. I’m talking about rats so big we thought they were possums. A lot of ceilings were falling in on families. Stoves and fridges didn’t work. We had issues with floors falling out from under people,” Crawford said. “It was just an absolutely hopeless feeling.”

For years, the inspection scores assigned to the Memphis properties were inflated as they fell into disrepair, well before Global Ministries purchased them, said Brad Watkins, director of the Mid-South Peace and Justice Center, a civil rights organization that works with tenants. The scores began to drop only after Watkins and others raised concerns with HUD, he said.

Cynthia Crawford said she lived for years in unsafe conditions at the federally subsidized Warren Apartments in Memphis. She co-founded a tenants’ union to fight for better living conditions.

Then, in the spring of 2015, Crawford and other residents began organizing and Memphis’ local paper, The Commercial Appeal, revealed that people were living in unsafe units at Warren Apartments, one of the Global Ministries properties. At roughly the same time, Hamlet paid himself a salary of $500,000. After the story ran, HUD inspectors returned, this time issuing a failing score for Warren and Tulane apartments, which were inspected jointly. Months later, HUD moved to end a contract with Global Ministries for these two properties.

This prompted reporters and advocates in other states to start asking questions. In the spring of 2016, U.S. Sen. Marco Rubio, R-Fla., visited a troubled 400-unit apartment complex in his home state that was owned by Global Ministries. During the visit to Eureka Garden Apartments in Jacksonville, Rubio told a representative of the owner that the conditions he had witnessed were “terrifying and inexcusable,” according to news reports. Days later on the Senate floor, Rubio turned his attention to HUD. He criticized the agency for not giving the property a failing inspection score.

“I, for the life of me, don’t know how they passed any inspections because, I’m telling you, I visited and I’m not a building inspector, but you don’t have to be one to visit this building and know there is no inspection that the building should ever pass,” Rubio said.

That August, under pressure from HUD and the public over poor housing conditions, Hamlet announced plans to put all of Global Ministries’ HUD-subsidized properties up for sale.

Brown, the HUD spokesman, said that Global Ministries “hurt a lot of folks in Memphis” and that the department forced Hamlet to sell his HUD-subsidized properties. But in an interview, Hamlet said that the department had been familiar with deteriorating conditions in the properties that Global Ministries bought, as they had long been a part of HUD’s rental subsidy program under prior owners. The department also had to review his financing plans, approve the purchases and enter into contracts with the nonprofit.

The office building at the now-shuttered Warren Apartments, which was owned by Global Ministries Foundation.

In the interview, Hamlet blamed tenants for lacking basic housekeeping skills, faulted the management companies he hired to run day-to-day operations and said he was targeted by HUD officials because he’s a pastor. He defended his salary, saying a consultant told the nonprofit’s board that he was “underpaid.” “It’s clear we became the pinata of all the frustrations of the whole Section 8 program on some of these older properties,” Hamlet said.

The problems with Global Ministries prompted a broad re-examination of oversight at HUD and promises of reform.

In the last two years alone, Brown said, HUD has increased training and oversight of contractors who conduct inspections on the agency’s behalf. In 2016, HUD ordered inspectors to mark down properties for shoddy repairs such as using plywood to cover holes in drywall or tape to fix a rotting refrigerator gasket. And in 2016 and 2017, the agency decertified more than 50 contract inspectors after determining they had not properly followed protocols.

These changes had a dramatic effect on inspection scores nationally. From 2015 to 2017, the failure rate nationwide roughly tripled — from 4 percent to 13 percent for public housing complexes, and more than doubled from 2 percent to 5 percent for privately owned projects subsidized under HUD’s project-based multifamily programs. About 260 private properties with housing assistance failed, roughly one of out of every 19, as did about 430 public housing complexes, roughly one in eight properties inspected in 2017.

At the same time, the number of inspections of privately owned multifamily properties has decreased dramatically over the same period, from 8,400 in 2015 to 4,900 last year. HUD declined to answer a question about the reason for the drop.

But even after the changes HUD made to improve inspection protocols, unsafe properties continue to pass in some places. Nowhere is that more apparent than in Hartford.

In early 2017, a school family resource coordinator reached out to the Christian Activities Council, a neighborhood advocacy organization in Hartford, after a child at her school said she’d been bitten by a mouse. A community organizer with the nonprofit arranged a meeting with the child’s mother to find out more. But at the appointed time, the mother wasn’t home. Her other child had swallowed rat poison and was in the emergency room at a local hospital.

Shortly after this incident, Cori Mackey, the nonprofit’s executive director, and other advocates began knocking on doors in Hartford’s North End, a distressed neighborhood that sits a half-mile from the capital city’s downtown.

The Clay Arsenal Renaissance Apartments consist of 26 buildings, each containing six to 12 units. Most tenants did not realize that they shared a landlord, Mackey said. But after speaking about their shared concerns, the tenants decided they wanted to take on the landlord, Ah Min Holding LLC, and its managing member, Emmanuel Ku, and ultimately, HUD. A core group of six residents led the charge.

In April 2017, the Christian Activities Council reached out to HUD’s regional office in Boston to express concerns about unsafe conditions despite the property’s passing inspection scores. The following month, a construction analyst from HUD’s Boston office visited the property and found outdated kitchens, dead mice, nonfunctioning baseboard heaters and rickety outdoor decks, according to a report obtained by The Southern in a records request.

The next month, HUD issued Ah Min Holding a notice of default, giving the owner seven days to fix the most serious health and safety violations. But nothing really changed, the residents said.

Between late June and early July 2017, a HUD inspector assessed the property again. Because the department had been made aware of problems, this particular inspection was more intensive than is typical. Still, the property passed, scoring 73, just one point less than the previous year’s 74.

The property was marked down for mold and mildew, infestation and defective windows and doors inside units. But the owner compensated for those problems by posting high scores in other categories, including the exterior of the buildings and the grounds, which tenants said were manicured in the days before HUD officials arrived, while their units received little attention.

In early July, a little more than a week after the inspection, tenants held a rally and press conference where several detailed their poor living conditions and what they said was an absentee landlord. Afterward, Joseph Crisafulli, a senior HUD official from the agency’s Boston office, addressed the tenants, saying, “The stories I’ve heard about are as far away from acceptable HUD housing as I’ve heard in my 29 years at HUD.”

Before HUD ended its funding contract, the Clay Arsenal Renaissance Apartments in Hartford had passed its HUD inspections despite tenant complaints about conditions.

That same month, a rodent expert from Cornell University found that the mouse problem at Clay Arsenal defied amateur mouse traps. Because mice were living and breeding behind fridges, in walls and cabinets and in the cushions of plush furniture, he recommended an extensive and professional extermination effort to control the problem.

In September 2017, Yulissa Espinal, one of the tenants’ leaders, gave birth to a baby girl. She and her baby had to stay in the hospital for a week and then in a hotel for another while a social worker and city code enforcement officer attempted to force her landlord to rid her unit of rodents.

When Espinal returned home two weeks later, she said she found a dead mouse in the living room. It wasn’t long before the live mice returned, she said, forcing her to set traps around her baby’s crib at night. “I worried one would get into the crib and bite her,” said Espinal, a school bus driver raising four children on a limited income.

She and others continued to plead with HUD for help, while Ah Min Holding mounted a challenge to another default notice sent by the department, threatening to cancel the company’s contract. Ku’s attorney, Carl A. S. Coan III, told HUD that such a decision was “arbitrary” and “completely contrary” to the department’s enforcement regimen for a property that had passed its most recent inspection. Ku did not respond to request for comment through Coan. HUD withdrew the second default notice and instead required Ku to fix a lengthy list of problems by January 2018, a deadline the department extended numerous times.

Dismayed, the advocates and tenants kept searching for answers. They discovered what they considered an opening: Ah Min Holding had not properly obtained certificates of occupancy for its rental buildings, which require a city inspection when there is turnover of a rental unit. The city agreed. In February of this year, city officials inspected about 100 of Ah Min’s units, and nearly all of them failed.

In April, HUD once again notified Ah Min Holding that the company was in violation of its contract with the department. On May 2, the mayor of Hartford told Ku in a letter that the city would charge Ah Min $99 per violation per day until he fixed the issues. Two weeks later, a city committee voted to end Ah Min Holding’s tax abatement, which was worth about $266,000 annually.

In response to HUD’s April default notice, the property manager for Clay Arsenal said that the repairs required by HUD had been completed, and asked for more time to address the city’s code violations.

On May 31, tenants found letters taped to their door from HUD, announcing that the agency had pulled the company’s contract and would provide them assistance in relocating. HUD also sent Ku a letter stating that “in light of the conditions at the project, and your continuing failure to provide decent, safe housing,” the agency was denying his company’s request for additional time to fix problems.

After giving birth, Yulissa Espinal and her newborn baby had to sleep away from her home for two weeks last year because of rodents in her units. She said it wasn’t long before the mice returned.

Rhonda Siciliano, spokeswoman for HUD’s Boston office, said that routine inspections are only one of the agency’s oversight tools for holding landlords accountable: “Is it the primary one? Yes. Is it 100 percent foolproof? No.”

Siciliano said that as soon as problems were brought to HUD’s attention by the advocacy organization, the agency responded. But that’s the problem, said Mackey, the executive director of the nonprofit helping the tenants.

“HUD acted only because we put pressure on them, not because that’s part of their standard oversight system,” she said.

Even as HUD is making promises to further reform the inspection system, years of inflated scores assigned to unsafe and deteriorating properties has caused harm that will be hard to reverse.

Congress has made cuts to programs that pay for renovations at apartment complexes for years, and this has led to a massive backlog of repairs. In 2011, HUD published a study saying that some 1.2 million public housing units needed about $26 billion in large-scale repairs, and that the backlog would grow by more than $3 billion annually. (There has not been a more recent assessment.)

One of the most dramatic public housing oversight failures is playing out in New York City, in Cuomo’s home state, where nearly 400,000 people live in public housing. For decades, the New York City Housing Authority, the nation’s largest, managed to avoid many of the pitfalls and public relations nightmares that plagued other large cities. It was considered a success story for government-run housing. But not anymore.

This winter, thousands of tenants were without heat. The housing authority later admitted it had not properly conducted inspections for lead paint in recent years, and hundreds of children were poisoned. Units are overrun with rats and mold. In a complaint, federal prosecutors accused local officials of trying to conceal the extent of the problems and mislead HUD inspectors with actions such as turning off the water to buildings to conceal leaks and posting “Do Not Enter” signs on basement rooms. The city, which manages the housing authority, has agreed to spend more than $2 billion over a decade on renovation efforts, and to be overseen by a federal monitor under the terms of a consent decree that still must be approved by a federal judge.

Yet, records show that HUD has known about serious health and safety deficiencies inside New York City’s public housing complexes for years. Some inspection reports estimated more than 1,000 health and safety deficiencies; the properties continued to receive passing scores. On Wednesday, a judge declined to sign off on the consent decree because he said it did not go far enough to address conditions he described as “somewhat reminiscent of the biblical plagues of Egypt.” He asked both sides to come back next month with a proposal for how to proceed.

Similarly, in the town of Cairo, located in the southern Illinois region known as “Little Egypt,” residents of the Elmwood and McBride apartment complexes lived with mice, mold and heating outages that forced them to heat their homes with gas ovens. And for years, HUD gave these buildings passing grades as they fell apart.

Today, both buildings are empty.

Vines stretch up their sides. Plywood boards have been stapled over windows. Mangled, wind-whipped metal awnings hang over them. Once home to hundreds of children, it’s now eerily quiet. Before HUD moved everyone out, nearly a sixth of the population of this town at Illinois’ southernmost border lived in the two 1940s-era apartment complexes.

When HUD placed the housing authority into receivership, an agency spokesman told The Southern that HUD was “stunned … at what it saw, not just in terms of deplorable living conditions” but also “poor and absent record keeping, the staggering backlog of critical repairs.”

When HUD finally announced a plan to address the unsafe conditions in the spring of 2017, officials told residents that the buildings were too far gone to save, and that the department was no longer in the business of building public housing. Residents were provided vouchers that subsidize rent in the private market, but many had to leave Cairo because it had few rental apartments. The shuttering of Elmwood and McBride leaves few public housing options: two high-rise towers and several smaller buildings.

The McBride housing development in Cairo. HUD announced plans to shutter McBride, and the nearby Elmwood housing complex, in April 2017.

When HUD’s inspector general released a report this summer examining why the department didn’t step in sooner, faulty inspections were identified as part of the problem.

Brown, the HUD spokesman, previously told The Southern that what happened in Cairo was a “rare” oversight failure on the department’s part. Three inspectors who had performed physical inspections at the Alexander County Housing Authority between 2009 and 2016 have been decertified for performance issues.

But Jeremy Kirkland, HUD’s acting deputy inspector general, told a House subcommittee in late September, “I am absolutely certain there are others out there like Elmwood and McBride.”


Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom. 

 

 

 

 

 

 

What is public service loan forgiveness? And how do I qualify to get it?

Robert Kelchen, Seton Hall University

The first group of borrowers who tried to get Public Service Loan Forgiveness – a George W. Bush-era program meant to provide relief to those who went into socially valuable but poorly paid public service jobs, such as teachers and social workers – mostly ran into a brick wall.

File 20181031 122150 ccipsn.jpg?ixlib=rb 1.1
Public Service Loan Forgiveness can be difficult to get if you don’t know the rules. Rawpixel.com/www.shutterstock.com

Of the 28,000 public servants who applied for Public Service Loan Forgiveness earlier this year, only 96 were approved. Many were denied in large part due to government contractors being less than helpful when it came to telling borrowers about Public Service Loan Forgiveness. Some of these borrowers will end up getting part of their loans forgiven, but will have to make more payments than they expected.

With Democrats having regained control of the U.S. House of Representatives in the November 2018 midterm elections, the Department of Education will likely face greater pressure for providing better information to borrowers, as it was told to do recently by the Government Accountability Office.

The Public Service Loan Forgiveness program forgives loans for students who made 10 years of loan payments while they worked in public service jobs. Without this loan forgiveness plan, many of these borrowers would have been paying off their student loans for 20 to 25 years.

Borrowers must follow a complex set of rules in order to be eligible for the Public Service Loan Forgiveness program. As a professor who studies federal financial aid policies, I explain these rules below so that up to 1 million borrowers who have expressed interest in the program can have a better shot at receiving forgiveness.

free money for college

What counts as public service?

In general, working for a government agency – such as teaching in a public school or a nonprofit organization that is not partisan in nature – counts as public service for the purposes of the program. For some types of jobs, this means that borrowers need to choose their employers carefully. Teaching at a for-profit school, even if the job is similar to teaching at a public school, would not qualify someone for Public Service Loan Forgiveness. Borrowers must also work at least 30 hours per week in order to qualify.

What types of loans and payment plans qualify?

Only Federal Direct Loans automatically qualify for Public Service Loan Forgiveness. Borrowers with other types of federal loans must consolidate their loans into a Direct Consolidation Loan before any payments count toward Public Service Loan Forgiveness. The failure to consolidate is perhaps the most common reason why borrowers who applied for forgiveness have been rejected, although Congress did provide US$350 million to help some borrowers who were in an ineligible loan program qualify for Public Service Loan Forgiveness.

In order to receive Public Service Loan Forgiveness, borrowers must also be enrolled in an income-driven repayment plan, which ties payments to a percentage of a borrower’s income. The default repayment option is not income-driven and consists of 10 years of fixed monthly payments, but these fixed payments are much higher than income-driven payments. The bottom line is it’s not enough to just make 10 years of payments. You have to make those payments through an income-driven repayment plan to get Public Service Loan Forgiveness.

Parent PLUS Loans and Direct Consolidation Loans have fewer repayment plan options than Direct Loans made to students, so borrowers must enroll in an approved income-driven repayment plan for that type of loan. Borrowers must make 120 months of payments, which do not need to be consecutive, while enrolled in the correct payment plan to receive forgiveness.

How can borrowers track their progress?

First of all, keep every piece of information possible regarding your student loan. Pay stubs, correspondence with student loan servicers and contact information for prior employers can all help support a borrower’s case for qualifying for Public Service Loan Forgiveness. Unfortunately, borrowers have had a hard time getting accurate information from loan servicers and the Department of Education about how to qualify for Public Service Loan Forgiveness.

The U.S. Government Accountability Office told the Department of Education earlier this year to improve its communication with servicers and borrowers, so this process should – at least in theory – get better going forward.

Borrowers should also fill out the Department of Education’s Employment Certification Form each year, as the Department of Education will respond with information on the number of payments made that will qualify toward Public Service Loan Forgiveness. This form should also be filed with the Department of Education each time a borrower starts a new job to make sure that position also qualifies for loan forgiveness.

Can new borrowers still access Public Service Loan Forgiveness?

Yes. Although congressional Republicans proposed eliminating Public Service Loan Forgiveness for new borrowers, the changes have not been approved by Congress. Current borrowers would not be affected under any of the current policy proposals. However, it would be a good idea for borrowers to fill out an Employment Certification Form as soon as possible just in case Congress changes its mind.

Are there other affordable payment options available?

Yes. The federal government offers a number of income-driven repayment options that limit monthly payments to between 10 and 20 percent of “discretionary income.” The federal government determines “discretionary income” as anything you earn that is above 150 percent of the poverty line, which would translate to an annual salary of about $18,000 for a single adult. So if you earn $25,000 a year, your monthly payments would be limited to somewhere between $700 and $1400 per year, or about $58 and $116 per month.

These plans are not as generous as Public Service Loan Forgiveness because payments must be made for between 20 and 25 years – instead of 10 years under Public Service Loan Forgiveness. Also, any forgiven balance under income-driven repayment options is subject to income taxes, whereas balances forgiven through Public Service Loan Forgiveness are not taxed.The Conversation


Republished with permission under license from The Conversation.

Two Indiana Police Officers to be Charged After Video Shows Them Beating Handcuffed Man

“A little overboard,” is how the police chief had previously described the officers’ actions. The decision to charge them came only after ProPublica’s Local Reporting Network demanded to see the video.

Two Elkhart, Indiana, police officers who punched a handcuffed man in the face more than 10 times will face criminal charges — 11 months after the fact, and only after The South Bend Tribune requested video of the incident as part of an ongoing investigation with ProPublica.

The two officers, Cory Newland and Joshua Titus, will be charged with misdemeanor counts of battery, the police department announced Friday. Both have been placed on administrative leave pending the case’s outcome, department spokesman Sgt. Travis Snider said.

The department also released the video of the beating after 5 p.m. Friday — more than three weeks after The Tribune requested a copy.

Five months ago, the two officers were disciplined for this incident. But they received reprimands rather than suspensions or possible termination.

Speaking to the city’s civilian oversight commission in June, Police Chief Ed Windbigler said the officers used “a little more force than needed” with a suspect in custody, and “just went a little overboard when they took him to the ground.” But Windbigler offered no other details, saying nothing of the two officers punching the man in the face.

The video was recorded in the police station’s detention area after the Jan. 12 arrest of Mario Guerrero Ledesma, who was 28 at the time. The footage shows Ledesma, in handcuffs, sitting in a chair while Newland, Titus and two other officers stand nearby. At one point, Ledesma prepares to spit at Newland, and the officer warns him not to.

As Ledesma spits, Newland and Titus immediately tackle him, and the back of Ledesma’s head strikes the concrete floor. The two officers then jump on him and punch him in the face repeatedly while one calls him a “piece of shit.”

Two other officers walk up casually as the punches are being thrown. “Stop,” one can be heard saying, as the beating ends.

Ledesma pleaded guilty in July to charges of domestic battery and resisting law enforcement, and was sentenced to a year in jail, with 133 days suspended.

The Tribune and ProPublica have been investigating criminal justice in Elkhart County, looking at police accountability, among other issues.

A Tribune reporter requested the Ledesma video after noting a disparity between Windbigler’s public description to the Police Merit Commission — the city panel that exercises civilian oversight — and what the chief wrote in personnel records.

In a June 12 letter of reprimand to Newland, Windbigler wrote: “I completely understand defending yourself during an altercation. However, striking a handcuffed subject in the face is not acceptable and will not be tolerated. We cannot let our emotions direct our reactions or over-reactions to situations such as this.”

The personnel files provided by the police department did not include any response from Newland or Titus to the disciplinary allegations.

Windbigler ended his disciplinary letters to both officers on an upbeat note: “I consider this matter closed!”

At the June 25 meeting of the Police Merit Commission, chairman James Rieckhoff asked Windbigler if anyone had been injured in this incident.

“No,” Windbigler said.

Windbigler, explaining why he opted for only reprimands, told the commission that Titus “had no previous complaints.” He said of Newland: “Here, again, he had no other incidents in his file, so this is his first incident of any type of force.”

“Any questions on this one?” Rieckhoff asked the commission’s other members.

“Just a comment,” commissioner Thomas Barber said. “I like how you police your own.”

“Yes, sir,” Windbigler said.

On Friday, The Tribune requested an interview with the chief, but Snider, the police spokesman, said the department would have no further comment beyond its announcement of the pending charges.

Neither Newland nor Titus immediately returned messages left at their department phone lines. Efforts to reach them at other phone numbers were also unsuccessful.

History of Misconduct

For Newland, the reprimand was not his first disciplinary incident. It was his ninth, according to personnel records gathered by The Tribune and ProPublica.

After being hired in 2008, Newland was suspended six times and reprimanded twice in his first five years.

In 2009, Newland was “very rude and unprofessional,” using profanity toward a member of the public while responding to a call, personnel records say. The police chief at the time, Dale Pflibsen, suspended Newland for one day. “You have been employed for just over one year and this is not the first allegation of you verbally loosing (sic) control towards the public,” Pflibsen wrote to Newland.

“I want to emphasize we will not tolerate this behavior from you towards anyone,” Pflibsen added. “If you plan on continuing your career at the Elkhart Police Department I suggest you seek counseling for anger management.”

The next year, in 2010, Newland was suspended one day for causing a car crash.

In 2011, Newland received a three-day suspension for conduct unbecoming an officer. After arresting a woman for public nudity — she and her boyfriend were having sex in their car, in Elkhart’s McNaughton park — Newland sent her a friend request on Facebook and seven text messages, asking to “hang out.”

“Needless to say you attempting to establish a relationship with this female, a defendant in a criminal case, is unprofessional,” Pflibsen wrote to Newland. “This type of conduct will not be tolerated by you or anyone else.”

One year later, in February 2012, Newland was suspended again, this time for one day. Newland, while off duty, flipped off another driver — who, it turned out, was a jail officer in St. Joseph County, according to a disciplinary letter. Newland also drove recklessly, “brake checking” the other driver, according to disciplinary records.

“Should there be another sustained allegation of this type of misconduct on or off duty I will seriously consider your termination from the Elkhart Police Department,” Pflibsen wrote to Newland.

Exactly one week later, still in February, Newland received a three-day suspension for not turning on his video-audio recording equipment “while on numerous calls and traffic stops,” a disciplinary notice says.

Newland’s last suspension — and his longest, for 35 days — came in the summer of 2013. Newland failed to investigate a woman’s complaint of domestic violence, then lied about it to his superiors, according to disciplinary records.

When asked directly by supervisors if the woman had said her husband hit her, Newland “indicated that she had not made any such statement, and only that there was some pushing involved,” a disciplinary letter said. But “within minutes of the end of the interview,” Newland “returned and informed his supervisors that the victim had, in fact, reported being hit by her husband.”

An audio recording captured the woman telling Newland she had been hit, and that her husband did so in front of her children, a disciplinary letter says.

Newland’s failure to be truthful did more than violate department policy, Pflibsen wrote to the civilian oversight board. If a police officer testifies as a witness, authorities must disclose if the officer “has been dishonest in his or her official capacity,” Pflibsen wrote, adding: “This incident has been referred to the Prosecutor’s Office and may have a significant detrimental impact on their ability to prosecute this case.”


​Republished with permission under license from ProPublica a Pulitzer Prize-winning investigative newsroom. 

 

 

African Hair Braiders Win! U.S. Supreme Court voids ruling

The U.S. Supreme Court on Tuesday vacated an appeals court ruling that supported a lengthy licensing process for hair-braiders in Missouri and ordered a judge in St. Louis to dismiss the case. The Supreme Court voided the 8th Circuit Court of Appeals opinion that upheld the previous cosmetology license requirements, because a new law, which is discussed in the background section, had already addressed it.

The Supreme Court didn't write a separate opinion, it simply reversed the 8th Circuit opinion. Therefore, the question of whether Missouri and other states within the 8th Circuit can require a cosmetology licensing for African hair braiders remains unanswered. However, the lawsuit which called the law into question in the first place is most likely the only reason the law was changed.

This case demonstrates why it is so important to understand and be able to use the law for your benefit. As we have said before, just because a law exists, doesn't mean it legitimate. You have a right and an obligation to question unfair and questionable laws!

Cases such as this is one of the reason Court.rchp.com exist; so people, especially those who have traditionally been oppressed can be empowered. Discover the hidden secrets of our legal and justice system with the information contained within Court.rchp.com.

Case Background

African hair braiders sue over Missouri law

Ndioba Niang and Tameka Stigers are professional African-style hair braiders in Missouri, but are not licensed as cosmetologists or barbers. The Missouri Board of Cosmetology and Barber Examiners required hair braiders to be licensed as cosmetologists or barbers even though African-style hair braiding is not included in the cosmetology or barbering school curriculum, and the licensing tests barely test on subjects related to the practice.

In order to obtain a Missouri cosmetology license, one must pass a background check, undergo substantial training, and pass an exam. Before sitting for the exam, an individual must have: (1) graduated from a licensed cosmetology school with at least 1,500 hours of training; or (2) completed an apprenticeship of at least 3,000 hours; or (3) completed similar training in another state. Alternatively, obtaining a barbering license requires at least 1,000 hours of training at a licensed barber school or completion of an apprenticeship of at least 2,000 hours. Completing the necessary requirements for a license would have forced Ms. Niang and Ms. Stigers to incur significant costs for irrelevant training. 

Four years ago, Ms. Niang and Ms. Stigers filed the federal lawsuit; they sued to vindicate their constitutional right to earn a living free of unreasonable government interference, and after losing in lower courts asked the Supreme Court to take their case. The original lawsuit, filed in 2014, complained that African-style hair-braiders were required to obtain a cosmetology license, which can cost thousands of dollars but doesn’t include any hair-braiding training.

When the lower courts considered the braiders’ challenge, they essentially ignored the evidence provided by the braiders that showed the licensing requirements were overly burdensome and did not sufficiently relate to the government’s asserted interests in public health and safety. In so doing, the lower courts applied a version of the rational basis test that is no more than a rubber-stamp of approval of government regulation. But that is not the proper application of the rational basis test.

The lawsuit was filed on behalf of Tameka Stigers, of Locs of Glory in St. Louis, and Ndioba “Joba” Niang, who runs Joba Hair Braiding in Florissant. Both have performed the hourslong braiding process for years without licenses and say they fear prosecution. 

one Tameka Stigers

Joba Hair Braiding owner Ndioba Niang, a native of Senegal who later lived in France, said she completed 1,000 of the required 3,000 hours of cosmetology training at a cost of thousands of dollars before dropping out.

Ndioba Niang

In 2016, U.S. Magistrate Judge John Bodenhausen upheld the requirements, and the 8th U.S. Court of Appeals agreed in January. A petition for writ of certiorari was filed on April 11, 2018 with the U.S. Supreme Court. However, the Missouri Legislature passed House Bill 1500 which eased the rules on hair- braiding, although those new rules have yet to take effect.

The Institute for Justice, which has filed suits across the country against regulation of various occupations, said the appeals court decision in the Missouri case was in conflict with other federal courts and the Supreme Court. Both the group and the Missouri attorney general asked the court to dismiss the case because of the change in the law, they said.

In May, the Missouri legislature passed a law easing requirements on hair-braiding that made the four-year lawsuit moot. Braiders are now exempted from the cosmetology license and a new specialty braiding license only requires that braiders pay a fee of $20, watch a four- to six-hour instructional video and submit to board inspections. Attendance at a licensed cosmetology school in Missouri can cost more than $16,000.

The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Passed during Reconstruction, these provisions held the promise that freedman would finally be granted the same rights and protections as their white brethren. Yet less than five years after this amendment was enacted, the Supreme Court eviscerated the Privileges or Immunities Clause in what became known as the Slaughter-House Cases (1873).

Slaughter-House eventually led to the development of modern “substantive” due process doctrine as a makeshift bandage over the hole in the Fourteenth Amendment left by the unprotected privileges and immunities. While allowing the Court to protect some rights, the “incorporation” of certain rights through the Due Process Clause relegated other, often “economic” rights to second-class status. Instead of judges’ taking a hard look at the actual reasons a law was passed and asking whether the government has overstepped its constitutional bounds, infringements of the right to earn a living or the freedom of contract barely receive a passing glance. They are upheld unless nobody—not even the judge hearing the case!—could possibly imagine a legitimate rationale for the law. Suffice it to say, hardly any laws are struck down under this so-called rational-basis test.

Enter Ndioba Niang and Tameka Stigers, both of whom are traditional African-style hair braiders attempting to support themselves by offering their services to willing customers. The Missouri Board of Cosmetology and Barber Examiners, however, demands that they first pay thousands of dollars to receive completely irrelevant training that has virtually nothing to do with hair-braiding. Applying the usual government-can-do-whatever-it-wants-regarding-economic-regulations level of judicial scrutiny, both the federal district court and the U.S. Court of Appeals for the Eighth Circuit upheld the licensing scheme.

You Shouldn’t Need a License to Braid Hair

This approach is wrong: ethically, historically, and legally. There is a long and well-documented history recognizing the right to earn an honest living as being at the center of the Anglo-American legal tradition and indispensable to the maintenance of a free and open society. Industry insiders often lobby for licensing laws and regulations—and then populate the boards or agencies tasked with enforcing the new rules as a means of limiting their competition. By contrast, those harmed are often politically powerless groups with limited means to fight back. But as long as the government says the magic words of “safety,” “health,” or “consumer protection” in asserting its restrictions, courts are content to turn a blind eye.

Because the right to earn a living is one of the basic rights that our Constitution was formed to protect, Cato has filed an amicus brief supporting the hair-braiders’ petition to the Supreme Court. We ask that the Court take Niang v. Tomblinson and establish that courts must meaningfully examine government incursions against this essential liberty, regardless where in the Fourteenth Amendment it finds the relevant right.


The background section was reprinted with permission under license from Cato at Liberty, with additional edits from other sources. 

You Don’t Earn Much and You’re Being Audited by the IRS. Now What?

By Paul Kiel,

The Internal Revenue Service audited nearly 1.1 million tax returns last year, but that represented just 0.5 percent of all returns. That means the chances of getting audited are fairly low.

But if you are audited, there’s a good chance it’s because you claimed the earned income tax credit. That’s a credit the federal government offers to people who work, have kids to take care of and don’t earn much money. Most households who claim it earn between $10,000 and $40,000 a year. The average credit is for $2,400, but it can go above $6,000 for larger families.

The IRS audits a lot of people who claim this credit. When that happens, the IRS blocks the refund. Some people may actually end up owing tax instead of getting a refund.

Here is an actual audit notice sent to a taxpayer last year, which was provided to us by the taxpayer’s legal aid attorney. We’ve annotated it to provide important context and added links to helpful resources for those facing an IRS audit.

If you claim the credit and are audited, there’s an excellent chance it will be done entirely through the mail. Of the 1 million-plus audits the IRS conducted last year, less than three-quarters were done by mail, with the remainder by examiners in the field. But for those who claimed the earned income tax credit, nearly all — 92 percent — were done by mail.

In the example here, the audit is ongoing, meaning the IRS hasn't yet made a final determination and won’t release the refund until the audit is closed. And the forms don’t make clear why this taxpayer, or any other, is selected for an audit. But for those claiming the EITC, the main issue is typically whether they have what's called a “qualifying child.” In other words, if you are audited, it’s usually because the IRS doubts that the child or children you claimed on your tax return actually live with you or are related to you (biologically or through adoption or marriage).

Whether a child qualifies can be confusing. This IRS FAQ can be helpful.

No single IRS employee is in charge of an EITC audit. Instead, taxpayers are told to call a service center to speak with a tax examiner. If you call, you may speak with a different person every time.

This taxpayer claimed the EITC and had been expecting a refund of several thousand dollars. Instead, because the IRS believes she doesn’t qualify for the credit, she is being told that she owes $599.53. Almost all of that amount is tax, not interest or penalties.

Since this is an open audit, she doesn’t owe the money quite yet. The tax is legally owed after she receives a notice of deficiency, which would be a separate letter. This taxpayer eventually was able to reverse the IRS’ audit finding through the help of a lawyer with the Low-Income Tax Clinic program and the Taxpayer Advocate Service.

The IRS has a full rundown of potential penalties and interest charges.

Taxpayers are responsible for notifying the IRS of their current address. So if this notice goes to an old address and isn’t forwarded, the taxpayer may lose the ability to respond to the audit notice. That doesn’t mean there’s no way to undo an IRS audit after it’s done, but it’s a lot harder.

Taxpayers can respond to audits on their own. However, your chances are much better with help. If you qualify for the EITC, then you will likely qualify for free legal help. Here is a directory of Low-Income Taxpayer Clinic locations. If, when the audit is finished, the IRS still does not agree that you qualify for the credit, the next step is usually to file a petition with the U.S. Tax Court.

To qualify for assistance from a low-income clinic, your household cannot make more than 250 percent of the federal poverty level. For example, a family of four living in the contiguous U.S., Washington, D.C., or Puerto Rico has to earn less than $62,750 per year in order to qualify. And the amount in dispute generally must be less than $50,000.

Once you receive the final notice of deficiency from the IRS, you legally owe the tax. Your best option then is to file a petition in Tax Court. If you don’t file within 90 days of receiving the notice of deficiency, you lose your chance to go to Tax Court. If you don't file a petition in Tax Court, the IRS may start to try to collect the tax you owe. You may still have a chance of undoing the audit finding through an audit reconsideration process, but that can take a very long time and your chances of success are lower.

Taxpayers who qualify for the EITC generally qualify for free legal help through the Low-Income Taxpayer Clinic program.

This letter was signed by an IRS manager in Austin, Texas. These audits are generally computer-driven with minimal human interaction. However, if you respond to an audit, it will be reviewed by a human being. But that’s also why the IRS can take as long as six months to review documentation that you submitted.


Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom. 

 

 

A Surgeon So Bad It Was Criminal

Christopher Duntsch’s surgical outcomes were so outlandishly poor that Texas prosecuted him for harming patients. Why did it take so long for the systems that are supposed to police problem doctors to stop him from operating?

The pain from the pinched nerve in the back of Jeff Glidewell’s neck had become unbearable.

Every time he’d turn his head a certain way, or drive over bumps in the road, he felt as if jolts of electricity were running through his body. Glidewell, now 54, had been living on disability because of an accident a decade earlier. As the pain grew worse, it became clear his only choice was neurosurgery. He searched Google to find a doctor near his home in suburban Dallas who would accept his Medicare Advantage insurance.

That’s how he came across Dr. Christopher Duntsch in the spring of 2013.

Duntsch seemed impressive, at least on the surface. His CV boasted that he’d earned an M.D. and a Ph.D. from a top spinal surgery program. Glidewell found four- and five-star reviews of Duntsch on Healthgrades and more praise seemingly from patients on Duntsch’s Facebook page. On a link for something called “Best Docs Network,” Glidewell found a slickly produced video showing Duntsch in his white coat, talking to a happy patient and wearing a surgical mask in an operating room.

There was no way Glidewell could have known from Duntsch’s carefully curated internet presence or from any other information then publicly available that to be Duntsch’s patient was to be in mortal danger.

Jeff Glidewell had surgery with Dr. Christopher Duntsch in 2013. He was Duntsch’s last patient, and his call to a judge in early 2015 helped bring the case back to the DA’s attention. (Dylan Hollingsworth for ProPublica)

In the roughly two years that Duntsch — a blue-eyed, smooth-talking former college football player — had practiced medicine in Dallas, he had operated on 37 patients. Almost all, 33 to be exact, had been injured during or after these procedures, suffering almost unheard-of complications. Some had permanent nerve damage. Several woke up from surgery unable to move from the neck down or feel one side of their bodies. Two died in the hospital, including a 55-year-old schoolteacher undergoing what was supposed to be a straightforward day surgery.

Multiple layers of safeguards are supposed to protect patients from doctors who are incompetent or dangerous, or to provide them with redress if they are harmed. Duntsch illustrates how easily these defenses can fail, even in egregious cases.

Neurosurgeons are worth millions in revenue for hospitals, so Duntsch was able to get operating privileges at a string of Dallas-area institutions. Once his ineptitude became clear, most chose to spare themselves the hassle and legal exposure of firing him outright and instead let him resign, reputation intact.

At least two facilities that quietly dumped Duntsch failed to report him to a database run by the U.S. Department of Health and Human Services that’s supposed to act as a clearinghouse for information on problem practitioners, warning potential employers about their histories.

“It seems to be the custom and practice,” said Kay Van Wey, a Dallas plaintiff’s attorney who came to represent 14 of Duntsch’s patients. “Kick the can down the road and protect yourself first, and protect the doctor second and make it be somebody else’s problem.”

It took more than six months and multiple catastrophic surgeries before anyone reported Duntsch to the state medical board, which can suspend or revoke a doctor’s license. Then it took almost another year for the board to investigate, with Duntsch operating all the while.

When Duntsch’s patients tried to sue him for malpractice, many found it almost impossible to find attorneys. Since Texas enacted tort reform in 2003, reducing the amount of damages plaintiffs could win, the number of malpractice payouts per year has dropped by more than half.

Duntsch’s attorney did not allow him to be interviewed for this story. Representatives from one hospital where he worked also would not respond to questions. Two more facilities said they could not comment on Duntsch because their management has changed since he was there, and a fourth has closed.

In the end, it fell to the criminal justice system, not the medical system, to wring out a measure of accountability for Duntsch’s malpractice.

In July 2015, Duntsch was arrested and Dallas prosecutors charged him with one count of injury to an elderly person and five counts of assault, all stemming from his work on patients.

The case was covered intensely by local and state media outlets. D Magazine, Dallas’ monthly glossy, published a cover story in 2016 with the headline “Dr. Death”; the nickname stuck.

Last year, Duntsch was convicted and sentenced to life in prison, becoming the first doctor in the nation to meet such a fate for his practice of medicine.

“The medical community system has a problem,” Assistant District Attorney Stephanie Martin said in a press conference after the verdict. “But we were able to solve it in the criminal courthouse.”

Glidewell was the last patient Duntsch operated on before being stripped of his license to practice medicine.

According to doctors who reviewed the case, Duntsch mistook part of his neck muscle for a tumor and abandoned the operation midway through — after cutting into Glidewell’s vocal cords, puncturing an artery, slicing a hole in his esophagus, stuffing a sponge into the wound and then sewing Glidewell up, sponge and all.

Glidewell spent four days in intensive care and endured months of rehabilitation for the wound to his esophagus. To this day, he can only eat food in small bites and has nerve damage. “He still has numbness in his hand and in his arm,” said his wife, Robin. “He basically can’t really feel things when he’s holding them in his fingers.”

Neither Glidewell, nor the prosecutors, nor even Duntsch’s own attorneys said they thought his outlandish case had been a wake-up call for the system that polices doctors, however.

“Nothing has changed from when I picked Duntsch to do my surgery,” Glidewell said. “The public is still limited to the research they can do on a doctor.”

For Duntsch, the path into medicine was unconventional and, perhaps, a reflection of his tendency to fixate on unlikely goals.

The first of these had been college football. Duntsch’s father had been a gridiron standout in Montana and Duntsch, though not a particularly talented athlete, was determined to follow in those footsteps. He trained hour after hour on his own and played linebacker on his high school team in Memphis, Tennessee. Classmates remember him as a turbine of sheer determination.

Before Duntsch became a doctor, he doggedly pursued a football career. One teammate remembers Duntsch struggling with basic drills and attributed Duntsch’s success to “sweat equity.” (Via Facebook)

“He had his goal, his sight on a goal and whatever it took to get there,” said one classmate, who did not want to be named. “He wanted to go to college and play, and I can recall he was like 180 pounds and said, ‘I need to get to 220’ in order to be a linebacker at Colorado or Colorado State.”

He did get a football scholarship, but it was to Millsaps College in Mississippi. He yearned to transfer and play linebacker for a Division I team. He set his sights on the Colorado State Rams his sophomore year and made it as one of the few walk-on players. Chris Dozois, a fellow linebacker with the Rams, recalled Duntsch struggling, even with basic drills, but begging to run them over and over.

“He’d be, ‘Coach, I promise I can get this, let me do it again.’ He’d go through; he’d screw it up again,” Dozois said. “I gathered very quickly that everything that he had accomplished in sports had come with the sweat equity. When people said, ‘You weren’t going to be good enough,’ he outworked that and he made it happen.”

Homesick, Duntsch left Colorado after a year and transferred again to what was then Memphis State University, now the University of Memphis. He had hoped to play football, but he tearfully told Dozois his multiple transfers had taken away his eligibility.

It was then, Dozois recalled, that Duntsch set his sights on his next goal: to be a doctor. And not just any doctor — a neurosurgeon, operating on injured backs and necks.

After getting his undergraduate degree in 1995, Duntsch enrolled at the University of Tennessee at Memphis College of Medicine, in an ambitious program to earn both an M.D. and a Ph.D.

As part of the program, he worked in a research lab, studying the origins of brain cancer and the various uses of stem cells. For a time, after he earned his dual degrees in 2001 and 2002, it seemed he might make a career in biotechnology rather than treating patients.

As he did his surgical residency, Duntsch teamed up with two Russian scientists, recruited by the University of Tennessee, to explore the commercial potential of stem cells to revitalize ailing backs. They patented technology to obtain and grow disk stem cells, and in 2008, they launched a company, DiscGenics, to develop and sell such products. Two of Duntsch’s supervisors from the university were among the first investors.

Duntsch on his first day as a neurosurgeon. (Via Facebook)

While Duntsch appeared to be thriving during these years, more unsavory aspects of his life simmered below the surface.

In sworn testimony from 2014, an ex-girlfriend of one of his closest friends described a drug-fueled, all-night birthday celebration for Duntsch about midway through his residency. Revelers drank and used cocaine and pills, she said. At dawn, Duntsch slipped on his white coat and headed for rounds at the hospital.

“Most people, when they go binge all night long, they don’t function the next day to go to work,” she said in her deposition. “After you’ve spent a night using cocaine, most people become paranoid and want to stay in the house. He was totally fine going to work.”

One of the early investors in DiscGenics, Rand Page, said he was initially impressed with how Duntsch presented himself and the company, but as time passed, Page became wary of his new business partner.

“We would meet in the mornings, and he would be mixing a vodka orange juice to start off the day,” Page said. Once, he stopped by Duntsch’s house to pick up some paperwork. He opened a desk drawer to find a mirror with cocaine and a rolled-up dollar bill sitting on top of it.

Ultimately, Duntsch was forced out of DiscGenics and his partners and investors sued him over money and stock. (Representatives of DiscGenics declined to be interviewed for this story.)

The University of Tennessee said it could not comment on Duntsch, citing the confidentiality and privacy of medical students’ records, but Dr. Frederick Boop, chief of neurosurgery at the hospital where Duntsch did his residency, appears to have known about Duntsch’s substance abuse.

In a 2012 phone call recorded by a Texas doctor who contacted Boop because he was alarmed by Duntsch’s surgical errors, Boop acknowledged that an anonymous woman had filed a complaint against Duntsch, saying he was using drugs before seeing patients.

In the phone conversation, Boop said university officials had asked Duntsch to take a drug test, but he had avoided it, disappearing for several days. When he returned, he was sent to a program for impaired physicians and closely supervised for the remainder of his surgical training, Boop told the Texas doctor. (An attorney for the University of Tennessee said Boop would not respond to questions for this story.)

It’s not clear how much training Duntsch actually received, however.

After his arrest, the Dallas district attorney’s office subpoenaed every hospital on Duntsch’s CV for records of his surgeries, including those during his residency and subsequent one-year fellowship.

According to the Accreditation Council for Graduate Medical Education, a neurosurgery resident does about 1,000 operations during training. But according to records gathered by the DA, by the time Duntsch finished his residency and fellowship, he had operated fewer than 100 times.

Despite what Duntsch had told friends when he headed off to medical school, Page said Duntsch had staked his fortune on being a businessman, not a doctor.

“I don’t think his plan was ever to become a surgeon,” he said. When Duntsch was kicked out of DiscGenics, “I think the decision was made for him that he was going to have to enter into the medical community to support himself.”

Duntsch’s first job as a practicing physician was at the Minimally Invasive Spine Institute in the affluent Dallas suburb of Plano, which hired him in the summer of 2011, when he also received privileges to operate at Baylor Regional Medical Center.

The hospital welcomed Duntsch with a $600,000 advance. While no one from the practice agreed to be interviewed, they sent an email describing the recommendations they had gotten from Duntsch’s supervisors at the University of Tennessee medical school in Memphis.

“We were told Duntsch was one of the best and smartest neurosurgeons they ever trained, as they went on at length about his strengths,” they said in the email. “When asked about Dr. Duntsch’s weaknesses or areas for improvement, the supervising physician communicated that the only weakness Duntsch had was that he took on too many tasks for one person.”

In 2010, Boop faxed a recommendation for Duntsch to Baylor-Plano, checking off “good” or “excellent” in boxes asking about his skills and noting, “Chris is extremely bright and possibly the hardest working person I have ever met.” Another supervisor, Dr. Jon Robertson, who was an old family friend of the Duntsches and an investor in DiscGenics, noted on his recommendation that Duntsch had an “excellent work ethic.” (A University of Tennessee attorney said Robertson could not respond to questions.)

A vascular surgeon who operated at Baylor-Plano, Dr. Randall Kirby, said he met Duntsch soon after he started and found him to be an arrogant know-it-all.

Dr. Randall Kirby, left, and Dr. Robert Henderson both worked to keep Duntsch from being able to operate on patients. (Nate Kitch, special to ProPublica)

“I would see him maybe once a week at the scrub sinks or in the doctor’s lounge,” Kirby said. “He is among giants up there, and he was trying to tell me over and over again how most of the spine surgery here in Dallas was being done inappropriately and that he was going to clean this town up.”

Duntsch lasted only a few months at the spine institute, not because his patients had complications, but because of a falling out with the other doctors over whether he was fulfilling his obligations.

One weekend in September 2011, Kirby said, Duntsch was supposed to be taking care of a patient. He went to Las Vegas instead. One of the partners, Dr. Michael Rimlawi, “was notified by the administration that the patient wasn’t getting rounded on, and Dr. Rimlawi then dismissed Dr. Duntsch after that,” Kirby said. (Rimlawi declined to comment for this story.)

Nonetheless, Duntsch still had privileges at Baylor-Plano, and on Dec. 30, 2011, he operated on a man named Lee Passmore.

At the time, Passmore was an investigator in the Collin County Medical Examiner’s office, just north of Dallas. He had undergone successful back surgery once before, but the pain had returned. Passmore’s pain specialist told him he didn’t have a back surgeon to whom he routinely referred patients, but that he’d gone to lunch recently with one who “seemed like a guy that knew what he was talking about,” Passmore recalled in court testimony.

Vascular surgeon Mark Hoyle assisted with the operation. In later testimony, he said he watched in alarm as Duntsch began to cut out a ligament around the spinal cord not typically disturbed in such procedures. Passmore started bleeding profusely, so much so that the operating field was submerged in a lake of red. Duntsch not only misplaced hardware in Passmore’s spine, but he stripped the screw so it could not be moved, Hoyle testified. At one point, Hoyle said, he either grabbed Duntsch’s scalpel or blocked the incision — he could not remember which — to keep Duntsch from continuing the procedure. Then Hoyle said he left the operating room and vowed never to work with Duntsch again. (In response to a request for comment, Hoyle sent a note saying he was through talking about Duntsch.)

Passmore did not respond to requests for comment for this story. Passmore has testified that he lives with chronic pain and has trouble walking as a result of Duntsch’s errors.

The next patient Duntsch operated on was Barry Morguloff.

Morguloff ran a pool service company. He had worn out his back working in his father’s import business, helping to unload trucks. “It took a toll on my back even with back supports and exercise and a strong core,” Morguloff said. His pain returned after an earlier back surgery, but the surgeon recommended exercise and weight loss, not another procedure.

A pain specialist gave Morguloff Duntsch’s card.

“Everything that I read when we first got his card — outstanding reviews, people loved him. I read everything I could about this guy,” Morguloff said. He set up an appointment and found himself impressed by Duntsch’s easy confidence.

“Phenomenal, great guy, loved him,” Morguloff recalled. Most importantly, he added, “I was in pain and somebody, a neurosurgeon, said, ‘I can fix you.’”

His surgery, an anterior lumbar spinal fusion, took place on Jan. 11, 2012. At the request of a head-and-neck surgeon also on the case, the vascular surgeon assisting Duntsch was Kirby. Kirby said it should have been a routine case.

“In the spectrum of what a neurosurgeon does for a living, doing an anterior lumbar fusion procedure’s probably the easiest thing that they do on a daily basis,” he said.

But Duntsch quickly got into trouble. Instead of using a scalpel, he tried to pull Morguloff’s problem disk out with a grabbing instrument that could damage the spine. Kirby said he argued with Duntsch, even offering to take over, but Duntsch insisted he knew what he was doing. Kirby left the room.

Barry Morguloff had what was supposed to be routine surgery with Duntsch. The lasting damage has affected his ability to walk, and as time passes he gradually loses function on the left side of his body. (Dylan Hollingsworth for ProPublica)

Morguloff awoke in excruciating pain.

His previous surgeon testified at Duntsch’s trial that the procedure had left bone fragments in Morguloff’s spinal canal. The surgeon said he repaired what damage he could, but Morguloff still walks with a cane. As scar tissue builds up, his pain will worsen and his range of motion will decrease. One day, he will likely be in a wheelchair.

“As time goes on, the scar tissue and everything builds up, and I lose more and more function of that left side,” he said. “I do my best to stay active. But some days I just can’t get moving. The pain is continuous.”

Soon after the Morguloff surgery, Duntsch took on a patient who was also an old friend.

Jerry Summers had played football with Duntsch in high school and helped with logistics at the research lab during his residency. When Duntsch took the job in Dallas, he asked Summers to move with him and help set up his practice. They lived in a downtown luxury high-rise while Duntsch shopped for a house.

In a deposition he gave later to the district attorney, Summers said he asked Duntsch to operate on him because he had chronic pain from a high school football injury that had gotten worse after a car accident. After the February 2012 surgery, however, Summers couldn’t move from the neck down.

According to doctors who later reviewed the case, Duntsch had damaged Summers’ vertebral artery, causing it to bleed almost uncontrollably. To stop the bleeding, Duntsch packed the space with so much anticoagulant that it squeezed Summers’ spine.

For days after the operation, Summers lay in the ICU, descending into a deep depression. “Jerry was calm with Chris,” said Jennifer Miller, then Summers’ girlfriend, “but all Jerry would say to me is: ‘I want to die. Kill me. Kill me. I want to die.’”

One morning, Summers began screaming and told several nurses that he and Duntsch had stayed up the night before the surgery doing eight-balls of cocaine. In truth, the night before the surgery Summers and Miller had dinner at a local restaurant and watched the University of Memphis basketball team play Southern Mississippi on the bar TV.

In his 2017 deposition, Summers acknowledged he made up the pre-surgery cocaine binge because he felt Duntsch had abandoned him, as both his surgeon and his friend.

“I was just really mad and hollering and wanting him to be there,” Summers said. “And so I made a statement that was not something that was necessarily true. … The statement was only made so that he might hear it and go, ‘Let me get my ass down there.’”

Baylor officials took Summers’ accusation seriously and ordered Duntsch to take a drug test. As at the University of Tennessee, he stalled at first, telling administrators he got lost on the way to the lab. He passed a separate psychological evaluation and, after three weeks, was allowed to operate again, but he was told to stick to relatively minor procedures.

His first patient after his return was elementary school teacher Kellie Martin, who had a compressed nerve from falling off a ladder as she fetched Christmas decorations from her attic. During the surgery, records show, Martin’s blood pressure inexplicably plummeted.

As she regained consciousness after the surgery, the nurses tending to Martin testified that she began to slap and claw at her legs, which had turned a splotchy, mottled color. She became so agitated the staff had to sedate her. She never reawakened. An autopsy would later find that Duntsch had cut a major vessel in her spinal cord, and within hours, Martin bled to death.

Baylor-Plano again ordered Duntsch to take a drug test. The first screening came back diluted with tap water, but a second, taken a few days later, came up clean. Hospital administrators also organized a comprehensive review of Duntsch’s cases, after which they determined that his days at the facility were over.

But — importantly — they did not fire him outright. Instead, he resigned, leaving on April 20, 2012, with a lawyer-negotiated letter saying, “All areas of concern with regard to Christopher D. Duntsch have been closed. As of this date, there have been no summary or administrative restrictions or suspension of Duntsch’s medical staff membership or clinical privileges during the time he has practiced at Baylor Regional Medical Center at Plano.”

Since Duntsch’s departure was technically voluntary and his leave had been for less than 31 days, Baylor-Plano was under no obligation to report him to the National Practitioner Data Bank.

The databank, which was established in 1990, tracks malpractice payouts and adverse actions taken against doctors, such as being fired, barred from Medicare, handed a long suspension, or having a license suspended or revoked.

The information isn’t available to the public or other doctors, but hospital administrators have access to the databank and are supposed to use it to make sure problem doctors can’t shed their pasts by moving from state to state or hospital to hospital. Robert Oshel, a patient safety advocate and former associate director of the databank, says that hospitals are required to check all applicants for clinical privileges and once every two years for everyone who has clinical privileges.

Many hospitals, however, hesitate to submit reports to the databank, worrying that doing so may hurt doctors’ job prospects or even prompt lawsuits.

“What happens sometimes is that doctors are allowed to resign in lieu of discipline so that the hospital can protect its perceived legal liability from the doctor,” said Van Wey, the Dallas trial lawyer. “If Dr. Duntsch was unable to get privileges at other hospitals, theoretically Dr. Duntsch could have sued Baylor and said: ‘Look, I could be making $2 million a year here. … You owe me $2 million for the rest of my life.’”

According to a report by Public Citizen, a consumer watchdog group, about half the hospitals in the country had never reported a doctor to the databank by 2009. A more recent analysis didn’t find much change, said Dr. Sid Wolfe, a founder of Public Citizen’s Health Research Group.

Despite his string of problems at Baylor-Plano, Duntsch also wasn’t reported to the Texas Medical Board, the state’s main purveyor of doctor discipline. Such boards often move slowly, but if hospital officials submit material they’ve gathered to justify letting a doctor go, boards can act to protect patients from imminent harm.

“Had Baylor’s action been reported appropriately, I would anticipate the board would have met within days to have an immediate suspension,” said Dr. Allan Shulkin, a Dallas pulmonologist who was on the medical board in 2012.

The board would still have conducted an investigation, but Duntsch would not have been allowed to operate while it was going on, Shulkin said. He was visibly angered by Baylor-Plano’s failure to report. “What’s the worst that can happen, a lawsuit?” he said. “Come on. These are people dying, and we’re stopping because you’re afraid of a lawsuit?”

Two years after Duntsch left Baylor-Plano, the hospital’s decision not to report its review of his work or its results prompted an investigation by state health authorities. The hospital was hit with a violation and fined $100,000 in December 2014, but a year later, the citation and penalty were withdrawn. The Texas Health and Human Services Commission would not explain why, saying the records were confidential.

Hospital officials declined to be interviewed for this story, submitting a written statement instead.

“Our primary concern, as always, is with patients,” it said. “Out of respect for the patients and families involved, and the privileged nature of a number of details, we must continue to limit our comments. There is nothing more important to us than serving our community through high-quality, trusted healthcare.”

Duntsch’s next stop was Dallas Medical Center, which sits outside Dallas’ northern edge in the city of Farmers Branch. Baylor-Plano officials might have thought any future employer would contact them before hiring him and they could share information confidentially, but Dallas Medical Center granted Duntsch temporary privileges while its reference checks were still going on.

On July 24, 2012, Duntsch operated on Floella Brown, 64, a banker about to retire after a long career. She had come to Duntsch for cervical spine surgery to ease her worsening neck and shoulder pain.

About a half hour into Brown’s surgery, Duntsch started to complain that he was having trouble seeing her spine.

“He was saying: ‘There’s so much blood I can’t see. I can’t see this,’” said Kyle Kissinger, an operating room nurse. He kept telling the scrub tech “’suck more, suck more. Get that blood out of there. I can’t see.’ That’s really concerning to me because, not only that he can’t do it correctly when he can’t see that but, why is it still bleeding?”

Brown bled so much that blood was saturating the blue draping around her body and dripping onto the floor. The nursing staff put down towels to soak it up.

After the operation, Brown woke up and seemed fine, but early the next morning she lost consciousness. Pressure was building inside her brain for reasons that were unclear at the time.

That same morning — with Brown still in the ICU — Duntsch took another patient into surgery.

The patient’s name was Mary Efurd. She was an active 71-year-old who’d sought Duntsch’s help because back pain was keeping her off her treadmill.

Duntsch arrived at the hospital about 45 minutes after Efurd’s surgery had been set to start, Kissinger said. He spotted a hole in Duntsch’s scrubs. “It’s on the butt cheek of his scrubs. He didn’t wear underwear. That’s why it really shined down to me,” Kissinger said. The nurse realized he’d seen that hole for three straight days — Duntsch apparently hadn’t changed his scrubs all week. Kissinger also noticed that Duntsch had pinpoint pupils and hardly seemed to blink.

When Duntsch arrived, the staff told him that Brown, his patient from the day before, was in critical condition.

Soon after beginning Efurd’s surgery, Duntsch turned to Kissinger and told him to let the front desk know he would be performing a procedure on Brown called a craniotomy, cutting a hole in her skull to relieve the pressure in her brain. Problem was, Dallas Medical Center did not perform those, or even have the proper equipment to do them.

As he operated on Efurd, Duntsch quarreled first with Kissinger and later with his supervisors, insisting on a craniotomy for Brown, according to court testimony. All the while, the operating room staff questioned whether Duntsch was putting hardware into Efurd in the right places and noticed he kept drilling and removing screws.

In the end, Duntsch did not perform a craniotomy on Brown. She was moved to another hospital but never regained consciousness. In court, her family said they withdrew life support a few days later. A neurosurgeon hired to review her case would later determine that Duntsch had both pierced and blocked her vertebral artery with a misplaced screw. The review also found that Duntsch misdiagnosed the source of her pain and was operating in the wrong place.

The day after her surgery, Efurd awoke in agony. She couldn’t turn over or wiggle her toes. Hospital administrators called Dr. Robert Henderson, a Dallas spine surgeon, to try to repair the damage.

Shortly after he arrived at the hospital, Henderson pulled up Efurd’s post-operative X-rays. When he saw them, he said, “I’m really thinking that some kind of travesty occurred.” That impression only grew when Henderson reopened Efurd’s freshly made incisions the next day. “It was as if he knew everything to do,” Henderson said of Duntsch, “and then he’d done virtually everything wrong.”

There were three holes poked into Efurd’s spinal column where Duntsch had tried and failed to insert screws. One screw was jabbed directly into her spinal canal. That same screw had also skewered the nerves that control one leg and the bladder. Henderson cleaned out bone fragments. Then he discovered that one of Efurd’s nerve roots — the bundle of nerves coming out of the spine — was completely gone. For some inexplicable reason, Duntsch had amputated it.

The operation was so botched, Henderson recalled thinking Duntsch had to be an impostor passing himself off as a surgeon. Even after Henderson’s repairs, Efurd never regained her mobility and now uses a wheelchair. (In an email, Efurd said that discussing what happened to her again would take a toll on her health.)

By the end of the week, hospitals administrators told Duntsch he would no longer operate at Dallas Medical Center. But, as had happened at Baylor-Plano, Duntsch was allowed to resign and the hospital didn’t notify the National Practitioner Data Bank. Dallas Medical Center officials said the hospital had different managers when Duntsch worked there and that current administrators could not comment on his work or the circumstances under which he left.

Duntsch would continue to operate. In fact, his career in Dallas was only about half over.

After Duntsch’s disastrous run at Dallas Medical Center, he was finally reported to the state medical board. The first report came from Shulkin, the Dallas physician who served on the board, who had been told of the surgeries on Efurd and Brown. Other doctors started complaining, too.

“Once I heard about those cases, I called the medical board,” said Kirby, the vascular surgeon who had been present for Morguloff’s surgery. “I said: ‘Listen, we’ve had egregious results at Baylor-Plano. He was not reported to the databank. We’ve had egregious results at Dallas Medical Center. He’s got to be stopped.’”

After being called in to help Efurd, Henderson, too, made it his personal mission to stop Duntsch from operating. He called Boop at the University of Tennessee to ask about Duntsch’s training and spoke to officials at Baylor-Plano hospital. He also called the state medical board.

When a couple of months passed and they didn’t hear about more bad outcomes, Henderson and Kirby said they assumed perhaps Duntsch’s mistakes had finally caught up with him.

Then, in December 2012, Kirby was asked to help Jacqueline Troy, a patient suffering from a severe infection. (The Troy family would not comment for this story.) Troy was being transferred to a Dallas hospital from a surgery center in the suburb of Frisco. She’d had neck surgery, but the surgeon had cut her vocal cords and one of her arteries. When Kirby learned the details, he asked the doctor who referred the case to him about the surgeon: “Is it a guy named Christopher Duntsch?”

It was.

Duntsch had managed to get a job at Legacy Surgery Center, an outpatient clinic. (The ownership of the clinic has changed and the new owners declined to comment for this story.)

Soon after Troy’s surgery, Duntsch was finally reported to the National Practitioner Data Bank, though not by any of his previous employers. A report dated Jan. 15, 2013, obtained by an attorney representing one of Duntsch’s patients, shows that Methodist Hospital in the Dallas suburb of McKinney had reported Duntsch after denying him privileges six months earlier. Their rejection was based on Duntsch’s “substandard or inadequate care” at Baylor-Plano. (Methodist McKinney declined to comment for this story.)

But even after the report to the databank, Kirby was stunned to discover another hospital had given privileges to Duntsch. In May 2013, he was invited to a “Meet Our New Specialist” dinner thrown by University General hospital at a Dallas restaurant. The event was to celebrate the arrival of a new neurosurgeon: Christopher Duntsch.

“I called down there and raised holy hell,” Kirby said.

Kirby in his office in Dallas. A vascular surgeon, Kirby was present for one surgery with Duntsch and worked afterward to stop him from operating again. (Dylan Hollingsworth for ProPublica)

University General, formerly known as South Hampton Community Hospital, had a troubled history: two bankruptcies and a former CEO sentenced to prison for health care fraud. Purchased for $30 million in 2012 by a Houston-based company, University General was one of only three hospitals serving Dallas’ southern half, an area that spans 200 square miles and includes more than 560,000 people. The surrounding community was hoping for a turnaround.

The hospital is now closed, and its administrators from that time did not respond to questions about why they hired Duntsch.

It likely came down to simple economics. According to the health care analysis firm Merritt Hawkins, the average neurosurgeon is worth $2.4 million a year in revenue to a hospital.

“That’s a dream for a hospital administrator,” Kirby said.

It’s also a virtual employment guarantee for a doctor with Duntsch’s credentials, Dallas neurosurgeon Dr. Martin Lazar said.

“I don’t think it’s because of our charm,” Lazar added dryly. “We are like a cash cow.”

It was at University General that Glidewell had his neck surgery, knowing none of Duntsch’s by then two-year history of botching operations.

Glidewell’s back problems had begun almost a decade earlier, in 2004, when he broke his back in two places in a motorcycle accident. After a year of rehab, he tried to go back to his job working on air conditioning systems but lasted only months before the pain stopped him. He left his first meeting with Duntsch elated and filled with hope.

“I was actually so happy with the way it went that I called my wife and my mother and said, ‘I think I found somebody on my insurance that’s gonna fix my neck,’” he said.

The day of the surgery began ominously. That morning, “We pulled out of the driveway, and soon as we started going forward down the street, a black cat ran across the front of the car,” Glidewell said. “I said, ‘Oh, Lord, this is not good.’ We turned the corner, and when we got on the first county road, and another one. Turning into the hospital, another one.”

Glidewell spent four days in intensive care and endured months of rehabilitation after his surgery with Duntsch. The photo on his iPad was taken the day he returned home, after spending months in the hospital. (Dylan Hollingsworth for ProPublica)

Three black cats on the way to the hospital. “I said, ‘We need to just turn around and go home.’”

Once at the hospital, Glidewell and his wife waited. And waited. Three hours late, they said, Duntsch finally arrived in a cab. “He had on jeans that were frayed at the bottom,” Glidewell said. “He didn’t look like he was ready for a surgery.”

Reluctantly, Glidewell went ahead. But hours later, Duntsch came out and told Glidewell’s wife that he had found a tumor in Glidewell’s neck and aborted the procedure.

“I was devastated, crying,” Robin Glidewell recalled. She went to see her husband in the recovery room. “Immediately, Jeff was: ‘Where is the doctor? I can’t move my arm or my leg.’ He was having trouble even talking and said, ‘Something’s wrong, something’s wrong.’”

There was no tumor, but Duntsch had made a series of errors after mistaking a portion of Glidewell’s neck muscle for a growth, according to a review of the case.

The owner of University General heard about what happened to Glidewell and called Kirby to try to mitigate the damage.

“I, with reluctance, went down there and met the Glidewell family and took care of him,” Kirby said. Glidewell was spiking fevers and was transferred to another hospital for care. He would remain there for months.

“This was not an operation that was performed,” Kirby said. “This was attempted murder.”

By the time Duntsch operated on Glidewell, the state medical board had been investigating him for about 10 months.

Frustrated by the board’s inaction, Henderson had called the lead investigator six months earlier to beg for faster intervention. In a recording Henderson made of the call, he says, “This is a bad, bad guy, and he needs to be put on the fast track if there’s such a thing.” She tells him she wishes they could suspend his license while they investigate, but the board’s attorneys wouldn’t go for that.

Kirby sent the board a five-page letter on June 23, 2013, spurred by what had happened to Glidewell. “Let me be blunt,” it said. “Christopher Duntsch, Texas Medical Board license number N8183, is an impaired physician, a sociopath, and must be stopped from practicing medicine.” Robin Glidewell also sent a letter, describing what happened to her husband.

By then, Brett Shipp, a reporter from Dallas’ ABC affiliate, had gotten tips about the board’s slow-moving investigation of Duntsch from a friend of one of Duntsch’s patients and a plaintiff’s attorney. “Very shortly after I contacted them,” Shipp said, “they suspended his license.”

On June 26, Duntsch was ordered to stop operating. The head of the medical board at the time, San Angelo family physician Dr. Irvin Zeitler, said the investigation took a while because “it’s not uncommon for there to be complications in neurosurgery.”

It also struck the board as highly improbable that a surgeon fresh out of training could be so lacking in surgical skill.

“So none of us rushed to judgment,” Zeitler said. “That’s not fair, and in the long run, it can come back to be incorrect. To suspend a physician’s license, there has to be a pattern of patient injury. So that was, ultimately that’s what happened. But it took until June of 2013 to get that established.”

Henderson was called in to repair the damage to one patient following her surgery with Duntsch. After he saw the damage to her spine, he made it his personal mission to keep him from operating on anyone else. (Dylan Hollingsworth for ProPublica)

Even after the board acted, those most involved in trying to keep Duntsch from operating were afraid it would not be the end of his career.

“I was terrified of that term, ‘suspended,’” Henderson said. “I mean, that indicates that he might get it back at some point in time, and I was already aware of the fact of how glib Dr. Duntsch was, and how disarming he was, and how friendly and intelligent he appeared whenever he introduced himself to people that he wanted to impress. I was concerned that he would do the same thing in getting his license back whether it was six months later, a year later, two years later.”

Kirby, Henderson and another doctor decided to contact the district attorney, convinced that Duntsch’s malpractice was so egregious it was criminal. They met with an assistant DA but got little traction.

On Dec. 6, 2013, the medical board permanently revoked Duntsch’s license.

He left Texas, moving in with his parents in Colorado and filing for bankruptcy, claiming debts of around $1 million. His life seemed to go into a free fall. In January 2014, he was pulled over by police in southern Denver around 3:30 a.m. Officers said he was driving on the left side of the road with two flat tires. When he opened the window, they smelled the sour tang of alcohol and spotted an empty bottle of Mike’s Hard Lemonade on the floor of the car. A full one was sitting in the console. After a breath test, Duntsch was arrested for DUI and sent to a detox facility.

Even though he was living in Colorado, he continued to return to Dallas to see his two sons. His older son had been born back when he at Baylor-Plano. His girlfriend, Wendy Young, had a second son in September of 2014.

The following spring, in March, police were called to a bank in Northeast Dallas after passers-by noticed a man with blood on his hands and face beating on the doors. It was Duntsch, babbling about his family being in danger. He was wearing the shirt of his black scrubs. It was covered in blood. Officers took him to a nearby psychiatric hospital.

In April, Duntsch went to a Dallas Walmart because his father had wired him money. According to a police report, he filled a shopping cart with $887 worth of merchandise, including watches, sunglasses, silk neckties, computer equipment, a walkie-talkie and bottle of Drakkar Noir cologne. He put them in bags he swiped from a register. He then then picked out a pair of trousers and put them on in a dressing room. He put his own pants into the cart and rolled the cart out the front door without paying for the pants he was wearing. Moments later, he was arrested for shoplifting.

By then, reporters were following every twist in the Duntsch saga. In May 2015, the Texas Observer published an article with the headline, “‘Sociopath’ Surgeon Duntsch Arrested for Shoplifting Pants.” In the comment section underneath the article, Duntsch responded with a series of diatribes against everyone he thought had conspired against him. His cybermanifesto ran to more than 80 pages when printed out.

In one comment directed at Kirby, he wrote, “You use the word without explanation impaired physician and sociopath. Since I am going to sue you or [sic] libel and slander of a criminal nature, this might be a good point to defend this comment.” He called Morguloff’s surgery “a perfect success.”

Kirby took the comments to the district attorney’s office. By then, a judge who knew Glidewell had also brought the case to the DA’s attention.

Prosecutors began discussing the case anew and one assistant district attorney, Michelle Shughart, found it particularly interesting. In 13 years with the Dallas DA’s office, she’d prosecuted drug dealers, robbers, but never a doctor. “I went and started doing my own research,” she said. “I just ended up taking over the case.”

One of the biggest challenges was that there hadn’t been a case like it before.

“We did a lot of research to see if we found find anyone else who had done any cases like this, any other doctors who had been prosecuted for what they had actually done during the surgery,” Shughart said. “We couldn’t find anyone.”

As she and other prosecutors contacted every person Duntsch had ever operated on or their survivors, they struggled to figure what crimes he could be charged with. They settled on five counts of aggravated assault arising from his treatment of four patients, including Brown and Glidewell, and one count of injury to an elderly person, because Efurd was over 65.

In Texas, this charge carried a potential life sentence, but prosecutors had to race to file the case.

“We had about four months left before we were going to run out on the statute of limitations” on Efurd’s case, Shughart said. “I spent those four months just digging as hard as I possibly could, trying to gather as much information as I could. And by the time we got down to that July, I had overwhelming evidence to indict him.”

Duntsch was taken into custody on July 21, 2015.

For some of his patients, the criminal case offered a last chance at justice they couldn’t get through the civil courts.

Since Texas capped damages in medical malpractice lawsuits, limiting the amount plaintiffs can be awarded for pain and suffering in most cases to $250,000, the number of suits filed and amounts paid out have plummeted.

The suits that go forward often ride on economic damages, such as lost earning power, which the law does not limit in non-death cases. But many of Duntsch’s patients were disabled when they came to him, or older, or had lower incomes. Some had pain that was hard to economically quantify. Despite having clear-cut claims and serious, irreversible injuries, three patients I talked to said me they had trouble finding attorneys to take their cases.

“It is not worth an attorney’s time and energy to take on a malpractice case in the state of Texas,” Morguloff said.

Ultimately, at least 19 of Duntsch’s patients or their survivors obtained settlements, but 14 of them were represented by Van Wey, who said she’s taken them on more out of a sense of outrage than out of any financial upside.

Morguloff was told no so often, he was surprised when attorney Mike Lyons finally took his case. He received a confidential settlement but said, “It wasn’t much.” He took more solace from the criminal case.

“To get this guy off the streets so nobody else got hurt again was important,” he said. “The public needed to know that there was a monster out there.”

Duntsch’s trial began on Feb. 2, 2017, and focused on the charge related to Efurd, injuring an elderly person.

She testified, but first, to show that her botched surgery was part of pattern, prosecutors — over objections from Duntsch’s attorneys — put a long line of his other patients and their relatives on the stand.

“You had people in walkers. You had people on crutches. You had people that could barely move. You had people that had lost loved ones,” Robbie McClung, Duntsch’s lead defense attorney, said. “You had all sorts of things that had gone wrong. Before we even get to Mary Efurd, you can see that it’s just … it’s going downhill. I mean, it’s going downhill fast.”

A screenshot shows Duntsch during a deposition. (District attorney's office)

Duntsch held up remarkably well, seeming calm in the certainty that he really was a good surgeon.

“I always thought when I looked at him, even when he was in his jail clothes, he exuded a confidence,” Richard Franklin, another member of the defense team, said. “And I could certainly understand why patients would trust him.”

Then Lazar and other experts walked the jury through a litany of Duntsch’s surgical missteps. Duntsch’s attorneys noticed a change come over him. He deflated before their eyes.

“I think that he thought he was doing pretty good,” Franklin said. “Really and truly, in his own mind. Until he actually heard from those experts up there.”

A key prosecution witness was Kimberly Morgan, who had been Duntsch’s surgical assistant from August 2011 through March 2012 and was also his ex-girlfriend. Morgan described Duntsch’s mercurial nature, vacillating from being kind and caring to patients to being angry and confrontational behind closed doors.

The prosecutors had Morgan read parts of an email Duntsch had sent to her in the early morning hours of Dec. 11, 2011, three weeks before he operated on Passmore at Baylor-Plano, the first of his surgical disasters.

The subject line of the email was “Occam’s Razor.” Occam’s razor is the idea that the simplest explanation for anything is most likely the right one. The email rambled on for five profanity-laced pages, but Morgan delivered the most startling passage.

“Unfortunately, you cannot understand that I am building an empire and I am so far outside the box that the Earth is small and the sun is bright,” Duntsch had written. “I am ready to leave the love and kindness and goodness and patience that I mix with everything else that I am and become a cold blooded killer.”

It took the jurors just hours to find Duntsch guilty of knowingly injuring Efurd. He was sentenced to life in prison. He’s currently incarcerated in Huntsville, about an hour outside Houston. On Sept. 18, his attorney filed an appeal in a Dallas court, arguing that the testimony on cases other than Efurd’s and the email read by Morgan unfairly influenced the jury.

In February, I visited Summers, Duntsch’s old football buddy-turned-patient, in his small apartment in downtown Memphis.

He remains in much the same condition as he awoke in after Duntsch operated on him, unable to move from the neck down. He requires 24-hour caregivers and sat, tipped back, in his power wheelchair, as I talked to him about Duntsch.

Summers seemed resigned to his injuries, to his friend’s role in them and to the systemic weaknesses that allow problem doctors to keep practicing. He said he tries not to think about Dallas anymore.

I asked him why he’d trusted Duntsch to be his doctor. He couldn’t say. He looked out the window.

He knew his friend could barely drive a car without getting lost, he said. He just assumed he had been better trained for neurosurgery.


Republished with permission under license from ProPublica a Pulitzer Prize-winning investigative newsroom. 

 

 

 

On the Supreme Court, difficult nominations have led to historical injustices

 

File 20180927 48634 1na0w5n.jpg?ixlib=rb 1.1
Supreme Court nominee Brett Kavanaugh at the Senate Judiciary Committee hearing, Sept. 27, 2018. AP/pool image, Michael Reynolds

By Calvin Schermerhorn, Arizona State University

Far from being unusual, the hurried and partisan Supreme Court confirmation process for Brett Kavanaugh mirrors several notable examples of similarly politicized confirmations in U.S. history.

Those conflicts, which ultimately placed justices on the court, yielded some of the most damaging civil rights decisions in our nation’s history.

Unlike any other branch of government, Supreme Court justices do not have to face voters at the polls. They have no term limits. Yet the high court is the final arbiter of constitutional rights and protections.

Controversial appointees who were rammed through hearings, or political careerists nominated for strategic reasons and confirmed despite scant vetting, handed down decisions that expanded slavery and rolled back civil rights.

Bad processes do not by themselves yield bad decisions. There have also been thinly vetted justices who have protected and extended civil rights, but such cases are in a minority.

Of course, all Supreme Court nominations are political because they embody the strategic priorities of the president. And the required Senate confirmation of a nominee may well be a “vapid and hollow charade,” in Justice Elena Kagan’s words, since partisan support matters over merit.

But as history shows, judicious confirmation hearings are vital to vetting a lifetime appointment that can affect citizens’ right to vote, access to courts, or the limits of presidential power.

Portrait of Supreme Court Justice Roger B. Taney by George P.A. Healy. The Collection of the Supreme Court of the United States

Bad process, bad decisions

Roger B. Taney was a partisan warrior who helped President Andrew Jackson kill the Bank of the United States by illegally draining its funds. Congress refused to confirm Taney as treasury secretary and censured Jackson.

So Jackson named Taney to the Supreme Court. The Senate refused to confirm him. The next year, after Jackson got a Democratic Senate, he renominated him, this time as chief justice. Taney was pushed hurriedly through confirmation.

The Taney Court was staunchly pro-slavery, rejecting states’ rights when Northerners asserted them to oppose slavery.

Taney’s most sweeping pro-slavery decision in Dred Scott v. Sandford in 1857 held that African-Americans “had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” The decision ruled that Congress had no power to prohibit slavery in any U.S. territory. Dred Scott is widely considered to be one of the worst decisions ever made by the court.

A critical time

During the Civil War, Abraham Lincoln was able to replace the Taney Court with corporation-friendly Republicans like Samuel F. Miller of Iowa, whom he nominated in 1862. Lincoln’s court strategy was to appoint Republicans who would endorse presidential powers in a war to save the Union.

Like Taney, Miller had owned slaves but freed them. And he was a party loyalist. As Miller’s biographer claims, he “sought results first and then found the arguments to justify them.”

Miller’s appointment came just as Lincoln was contemplating the Emancipation Proclamation. Lincoln could have asked Miller his views on the scope of black freedom, but he never did. He never even met Miller. And with no opposition in Congress, the Senate confirmed Miller in just hours.

Miller’s appointment may have been shrewd politics but it hollowed out the Civil War’s crowning achievement, the abolition of slavery and constitutional protections for African-American citizenship, including equal protection of the laws and the right to vote.

It was Miller’s majority ruling in the 5-4 Slaughterhouse Cases in 1873 that had the effect of limiting civil rights protections for African-Americans under the 14th Amendment, which extended citizenship to African-Americans and forbade states to deny them equal protection of the laws. The ruling in effect gave states sole power over areas of citizenship not explicitly covered in the federal Constitution. That, in turn, ultimately led to the growth of racist Jim Crow laws in states.

Justice Joseph P. Bradley, appointed by Ulysses S. Grant. Supreme Court

President Ulysses Grant’s two nominees were also pushed through hastily and had an oversized impact on civil rights.

Those appointments – conservative pro-business Republican Joseph P. Bradley and political hack Morrison Waite – unwittingly undermined Grant’s own Justice Department’s civil rights enforcement.

In 1870 Grant appointed Bradley specifically to help business interests concerned about recent decisions that they believed harmed them. Bradley faced scant opposition from a majority-Republican Senate in bed with railroad and other corporate interests.

Four years later, Grant picked Waite, a crony of Grant’s Ohio friends, who had zero judicial experience. Called a “national nonentity” by a court historian, Waite’s appointment surprised everyone, including Waite. The Senate confirmed him without debate.

The unintended consequences of these two overtly political nominations became clear in U.S. v. Cruikshank, an 1876 court decision.

In April 1873, up to 150 African-Americans were murdered by whites in a conflict over two competing Louisiana governments. Among those whites was William Cruikshank.

Cruikshank and others who participated in the massacre were charged and convicted in federal court of civil rights violations under the Enforcement Act of 1870. That act made it a federal crime to violate civil rights and was passed with the intention of putting teeth in the 14th Amendment, which guaranteed equal protection of the laws and due process. The case considered by the court was an appeal of those initial convictions.

Justice Waite ruled that the 14th Amendment’s civil rights provisions, including the equal protections of the laws and right to due process, did not apply to the victims of the Colfax Massacre.

Justice Bradley concurred in the ruling, clearing Cruikshank. Indeed, Bradley declared that none of the Colfax Massacre defendants were alleged to have “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.”

Bradley and Waite’s responses constituted willful blindness to a naked act of racial terrorism. And these decisions gutted the 14th Amendment’s civil rights provisions, leading to the swift and violent rise of Jim Crow.

More damage

Bradley went on to rule in 1883 that the Civil Rights Act of 1875, which outlawed racial discrimination in public facilities, was unconstitutional. He did this at a time when blacks were being denied the right to vote, barred from businesses and murdered with impunity. Bradley tutted that with his ruling a black citizen “ceases to be the special favorite of the laws.” And the law ended protection for African-Americans from segregation in schools, theaters and even cemeteries.

It would be 74 years before Congress passed another civil rights act.

Not all justices involved in partisan nominations, or who were poorly vetted, handed down dreadful rulings.

Louis D. Brandeis’ nomination in 1916 led to a bitter partisan brawl infused with anti-Semitism. One witness at his confirmation accused him of “infidelity,” and another characterized Brandeis as “duplicitous”.

Louis Brandeis won a bitter nomination fight to the Supreme Court. Boston Journal, June 2, 1916

Yet Brandeis became one of the nation’s most renowned Supreme Court justices, standing up for free speech in Whitney v. California in 1927 and dissenting in Olmstead v. United States the next year against warrantless wiretapping.

Harold H. Burton was a surprise nomination when Democrat Harry Truman nominated the Republican senator from Ohio in 1945. The Senate dispensed with hearings and confirmed Burton without debate. But Burton defied expectations, shaping the Supreme Court’s landmark Brown v. Board of Education of Topeka (1954) ruling that desegregated schools and overturned the Jim Crow doctrine of “separate but equal.”

Back to the 19th century

More recently, contested nominations have revived the 19th-century practice of ramming through partisans whose decisions undermine civil rights.

The 1991 Clarence Thomas nomination evokes that legacy. With a thin resume, partisan credentials, and his nomination hastily pushed through by George H. W. Bush’s administration, Thomas won a lifetime appointment by a two-vote margin after an acrimonious hearing involving his alleged sexual harrassment.

Justice Thomas is arguably among the most conservative justices. He joined Chief Justice John Roberts in the landmark 5-4 Shelby County v. Holder decision gutting the Voting Rights Act of 1965.

Brett Kavanaugh’s nomination, like that of Morrison Waite, Joseph P. Bradley and Roger B. Taney, has been rushed. A partisan warrior, he has been hastily advanced, with the majority of his papers withheld and sexual assault allegations overtaking his hearings.

As American history has shown, this process comes with profound risks.The Conversation


Republished with permission under license from The Conversation.

Murdered in his home while being black!

Thursday night, September 6th, while some people were contemplating burning their Nike gear because of an ad featuring Colin Kaepernick, a 26 year-old unarmed immigrant, Botham Shem Jean, was shot and killed while being black in his own home by a 30 year-old white female off duty Dallas police officer, Amber Guyger, after supposedly entering an apartment she mistakenly thought was her own.

The same night Jean was killed, Nike aired its first 30th anniversary "Just Do It" ad, narrated by Colin Kaepernick, during the NFL season opener between the Atlanta Falcons and Philadelphia Eagles. 

Colin Kaepernick began his slient and peaceful protest, first by sitting and then by taking a knee during the playing of the national anthem. Kaepernick has clearly stated a number of times that his protest has nothing to do with disrespecting the flag or military, but is simply a stand against the killing of unarmed black men at the hands of mostly white police officers. Jean's killing is the most recent example of what Kaepernick's protest is about. 

Guyger told police she thought she was entering her own apartment not realizing she was on the wrong floor; she thought her home was being burglarized and opened fire, shot him twice in the chest, and killed him. Guyger, off-duty but still in uniform, was returning home from either a 12 or 15-hour shift Thursday night; she said she mistook  Jean's apartment for her own, which was a floor below in the same complex. Weird, given he had a red welcome mat at the door (she didn't) and presumably different stuff in his place, but okay.

Jean was a devout Christian and talented singer and worked as a risk assurance associate at PricewaterhouseCoopers. He earned a bachelor's degree at Harding University in Arkansas, where he had been a beloved worship leader. Jean described himself on LinkedIn as a "young professional, engaged in developing a career built upon integrity, dedication and relationships, leveraging useful technologies to gain an understanding of and add value in a range (of) industries, striving towards leadership in my career, my community and society." A college friend described him as "wildly popular, hugely successful, and an incredible leader…he was a gentleman and a scholar." 

In an affidavit released Monday, Guyger made several shady new claims. She said Jean's door was open; she didn't know it was the wrong apartment until after she shot him; she saw "a large silhouette" – cue myth of the big black dude – as she entered; and Jean "ignored" her "verbal commands" – in, lest we forget, his own apartment. At least two witnesses refute her; they say they heard a woman knocking on the closed door and saying "Let me in,” and Jean was too “meticulous” to ever leave his door ajar. Also Guyger, it turns out, has been here before: In May 2017, Guyger was called to assist another officer searching for a suspect. An affidavit indicates a man identified as Uvaldo Perez got out of a car and became combative with Guyger and another officer. A struggle began and Guyger fired her Taser at Perez, who wrested the weapon away from her. Guyger then drew her gun and shot Perez in the abdomen, the affidavit says. Guyger was not charged in the case.

Dallas police requested an arrest warrant Friday for Guyger after Jean’s death was ruled a homicide; it wasn't issued until Sunday, reportedly because the Texas Rangers took over the case and were still investigating. Guyger, a four-year veteran of the department, was charged with manslaughter, booked into Kaufman County jail that evening and was freed an hour later after posting $300,000 bond, according to jail records. Given the contradictions in Guyger's story, officials say she could face stiffer charges once her case goes to a grand jury.

Allison Jean flew to Dallas from the family’s native St. Lucia after the shooting. Her son will be buried on the Caribbean island Thursday.  “She took my life away, like my very own life,” said Jean's mother, Allison. “She has to face whatever the law says. The very Bible says to render to Caesar that which is Caesar so if Caesar says to pay a penalty for a life, then she has to pay.”

Brandt Jean, brother of Botham Jean, is comforted by his sister, Allisa Charles-Findley, as their mother, Allison, looks on during a news conference.

For now, his family is left to grieve and seek answers. They gathered this weekend for a vigil at Jean's Dallas church, where the congregation honored him with one of his favorite hymns, "My God is Real," and a friend compared him to holy men of the Bible who gave friends spiritual guidance and "evangelized every day." His loss, he said, is "a disservice to humanity." It's also why Kaepernick and so many others continue to speak out in righteous rage, said family attorney Benjamin Crump, who said Jean's death should "astonish most sensible Americans…Black people have been killed by police in some of the most arbitrary ways in America. Blacks have been killed for ‘driving while black’ in their automobiles, ‘walking while black’ in their neighborhoods and now ‘living while black’ in their own apartment."

Critics online echoed him. The harsh clear lesson, said one: "Suit. Tie. Christian. Respectable. At home. Black. Dead." Jean's mother Allison Jean, a former government official of St. Lucia, likewise cited the clear racism behind her son's murder in an interview, calmly arguing a white man would not have met the same grim fate. “Botham loved God. Botham loved you. Botham loved mankind," she said. "God loves us all the same, and this has to stop."

As I heard about this young man's life, I couldn't help but be reminded about my oldest son. My son, who will be 25 tomorrow has been actively involve in church since his youth. Like Jean, he sings in the choir, and  is currently a minister and founder of an organization dedicated to help others. This could have just as easily been either of my two sons. My thoughts and prays go out to the Jean family. Hopefully Jean's tragic death will open the eyes of those burning their Nike gear and help them realize that police killing unarmed people is a real problem that needs to first be acknowledged and then solved.