Why Biden’s Vaccine Promise Can’t Be Fulfilled Until Summer

Why Biden’s Vaccine Promise Can’t Be Fulfilled Until Summer

Reprinted with permission from ProPublica

President Joe Biden has ordered enough vaccines to immunize every American against COVID-19, and his administration says it's using the full force of the federal government to get the doses by July. There's a reason he can't promise them sooner.

Vaccine supply chains are extremely specialized and sensitive, relying on expensive machinery, highly trained staff and finicky ingredients. Manufacturers have run into intermittent shortages of key materials, according to the U.S. Government Accountability Office; the combination of surging demand and workforce disruptions from the pandemic has caused delays of four to 12 weeks for items that used to ship within a week, much like what happened when consumers were sent scrambling for household staples like flour, chicken wings and toilet paper.

People often question why the administration can't use the mighty Defense Production Act — which empowers the government to demand critical supplies before anyone else — to turbocharge production. But that law has its limits. Each time a manufacturer adds new equipment or a new raw materials supplier, they are required to run extensive tests to ensure the hardware or ingredients consistently work as intended, then submit data to the Food and Drug Administration. Adding capacity "doesn't happen in a blink of an eye," said Jennifer Pancorbo, director of industry programs and research at North Carolina State University's Biomanufacturing Training and Education Center. "It takes a good chunk of weeks."

And adding supplies at any one point only helps if production can be expanded up and down the entire chain. "Thousands of components may be needed," said Gerald W. Parker, director of the Pandemic and Biosecurity Policy Program at Texas A&M University's Scowcroft Institute for International Affairs and a former senior official in the Department of Health and Human Services office for preparedness and response. "You can't just turn on the Defense Production Act and make it happen."

The U.S. doesn't have spare facilities waiting around to manufacture vaccines, or other kinds of factories that could be converted the way General Motors began producing ventilators last year. The GAO said the Army Corps of Engineers is helping to expand existing vaccine facilities, but it can't be done overnight.

Building new capacity would take two to three months, at which point the new production lines would still face weeks of testing to ensure they were able to make the vaccine doses correctly before the companies could start delivering more shots.

"It's not like making shoes," Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said in an interview with ProPublica. "And the reason I use that somewhat tongue-in-cheek analogy is that people say, 'Ah, you know what we should do? We should get the DPA to build another factory in a week and start making mRNA.' Well, by the time a new factory can get geared up to make the mRNA vaccine exactly according to the very, very strict guidelines and requirements of the FDA ... we already will have in our hands the 600 million doses between Moderna and Pfizer that we contracted for. It would almost be too late."

Fauci added that the DPA works best for "facilitating something rather than building something from scratch."

The Trump administration deployed the Defense Production Act last year to give vaccine manufacturers priority in accessing crucial production supplies before anyone else could buy them. And the Biden administration used it to help Pfizer obtain specialized needles that can squeeze a sixth dose from the company's vials, as well as for two critical manufacturing components: filling pumps and tangential flow filtration units. The pumps help supply the lipid nanoparticles that hold and protect the mRNA — the vaccines' active ingredient, so to speak — and also fill vials with finished vaccine. The filtration units remove unneeded solutions and other materials used in the manufacturing process.

These highly precise pieces of equipment are not typically available on demand, said Matthew Johnson, senior director of product management at Duke University's Human Vaccine Institute, who works on developing mRNA vaccines, but not for COVID-19. "Right now, there is so much growth in biopharmaceuticals, plus the pinch of the pandemic," he said. "Many equipment suppliers are sold out of production, and even products scheduled to be made, in some cases, sold out for a year or so looking forward."

In the meantime, the shortage of vaccines is creating widespread frustration and anxiety as eligible people struggle to get appointments and millions of others wonder how long it will be before it is their turn. As of February 17, the U.S. had distributed 72.4 million doses and administered 56.3 million shots, but fewer than 16 million people have received both of the two doses that the Pfizer and Moderna vaccines require for full protection.

The Biden administration has said it is increasing vaccine shipments to states by 20 percent, to 13.5 million doses a week, and encouraged states to give out all their shots instead of holding on to some for second doses. But now that second-dose appointments are coming due, many jurisdictions are having to focus on those and stepping back from vaccinating uninoculated people. Even as the total number of vaccinations increased last week, the number of first doses fell to 6.8 million people, down from 7.8 million three weeks ago, according to Centers for Disease Control and Prevention data.

At best, it will take until June for manufacturers to deliver enough doses for the roughly 266 million eligible Americans age 16 and over, according to public statements by the companies.

That includes expected deliveries of Johnson & Johnson's one-dose vaccine, which is widely expected to win emergency authorization from the FDA shortly after a public advisory committee meeting on Feb. 26. But Johnson & Johnson has fallen behind in manufacturing. The company told the GAO it will have only 2 million doses ready to go by the time the vaccine is authorized, whereas its $1 billion contract with HHS scheduled 12 million doses by the end of February. It's not clear what held up Johnson & Johnson's production line; the company has benefited from first-priority purchases thanks to the DPA, according to a senior executive close to the manufacturing process. A Johnson & Johnson spokesman declined to comment on the cause of the delay, but said the company still expects to ship 100 million U.S. doses by July.

Vaccine Supply Won't Cover All Until Late Spring

Public statements from vaccine developers Pfizer, Moderna and Johnson & Johnson illustrate how many people could be covered by the available U.S. supply from now until the end of the summer.

Moderna declined to comment on "operational aspects" of its manufacturing, but "does remain confident in our ability to meet contracted quantities" of its vaccine to the U.S. and other nations, a spokesperson said in a statement. Pfizer did not respond to ProPublica's written questions.

Ramping up production is especially challenging for Pfizer and Moderna, whose vaccines use an mRNA technology that's never been mass-produced before. The companies started production even before they finished trials to see if the vaccines worked, another historic first. But it wasn't as if they could instantly crank out millions of vaccines full blast, since they effectively had to invent a novel manufacturing process.

"Putting together plans 12 months ago for a Phase 1 and 2 trial, and making enough to dose a couple hundred patients, was a big deal for the raw material suppliers," said Johnson, the product manager at Duke University's vaccine institute. "It's just going from dosing hundreds of patients a year ago to a billion."

Raw materials for the Pfizer and Moderna vaccines are also in limited supply. The manufacturing process begins by using common gut bacteria cells to grow something called "plasmids" — standalone snippets of DNA — that contain instructions to make the vaccine's genetic material, said Pancorbo, the North Carolina State University biomanufacturing expert.

Next, specific enzymes cultivated from bacteria are added to cause a chemical reaction that assembles the strands of mRNA, Pancorbo said. Those strands are then packaged in lipid nanoparticles, microscopic bubbles of fat made using petroleum or plant oils. The fat bubbles protect the genetic material inside the human body and help deliver it to the cells.

Only a few firms specialize in making these ingredients, which have previously been sold by the kilogram, Pancorbo said. But they're now needed by the metric ton — a thousandfold increase. Moderna and Pfizer need bulk, but also the highest possible quality.

"There are a number of organizations that make these enzymes and these nucleotides and lipids, but they might not make it in a grade that is satisfactory for human consumption," Pancorbo said. "It might be a grade that is satisfactory for animal consumption or research. But for injection into a human? That's a different thing."

Johnson & Johnson's vaccine follows a slightly more traditional method of growing cells in large tanks called bioreactors. This takes time, and the slightest contamination can spoil a whole batch. Since the process deals with living things, it can be more like growing plants than making shoes. "Maximizing yield is as much of an art as it is a science, as the manufacturing process itself is dependent on biological processes," said Parker, the former HHS official.

The vaccine developers are continuing to find tweaks that can expedite production without cutting corners. Pfizer is now delivering six doses in each vial instead of five, and Moderna has asked for permission to fill each of its bottles with 15 doses, up from 10. If regulators approve, it would take two or three months to change over production, Moderna spokesman Ray Jordan said on Feb. 13.

"It helps speed up and lighten the logistical side of getting vaccines out," said Lawrence Ganti, president of SiO2, an Alabama company that makes glass vials for the Moderna vaccine. SiO2 expanded production with $143 million in funding from the federal government last year, and Ganti said there aren't any hiccups at his end of the line.

Despite the possibility of sporadic bottlenecks and delays in the coming months, companies appear to have lined up their supply chains to the point that they're comfortable with their ability to meet current production targets.

Massachusetts-based Snapdragon Chemistry received almost $700,000 from HHS' Biomedical Advanced Research and Development Authority to develop a new way of producing ribonucleoside triphosphates (NTPs), a key raw material for mRNA vaccines. Snapdragon's technology uses a continuous production line, rather than the traditional process of making batches in big vats, so it's easier to scale up by simply keeping production running for a longer time.

Suppliers have told Snapdragon that they have their raw materials covered for now, according to Matthew Bio, the company's president and CEO. "They're saying, 'We have established suppliers to meet the demand we have for this year,'" Bio said.

Mollie Simon and Caroline Chen contributed reporting.
COVID-19 vaccine, coronavirus vaccine

Most States Are Unprepared To Distribute Pfizer Covid-19 Vaccine

Reprinted with permission from ProPublica

As the first coronavirus vaccine takes a major stride toward approval, state governments' distribution plans show many are not ready to deliver the shots.

The challenge is especially steep in rural areas, many of which are contending with a surge of infections, meaning that access to the first batch of COVID-19 vaccines may be limited by geography.

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Why A Real Vaccine Won’t Arrive Before Election Day (Without A Miracle)

Reprinted with permission from ProPublica

Despite President Donald Trump's promises of a vaccine next month and pundits' speculation about how an “October surprise" could upend the presidential campaign, any potential vaccine would have to clear a slew of scientific and bureaucratic hurdles in record time.

In short, it would take a miracle.

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test tube, Fillakit LLC

Trump Administration Paid Millions To Sketchy Supplier For Useless Test Tubes

Reprinted with permission from ProPublica.

Since May, the Trump administration has paid a fledgling Texas company $7.3 million for test tubes needed in tracking the spread of the coronavirus nationwide. But, instead of the standard vials, Fillakit LLC has supplied plastic tubes made for bottling soda, which state health officials say are unusable.

The state officials say that these “preforms," which are designed to be expanded with heat and pressure into 2-liter soda bottles, don't fit the racks used in laboratory analysis of test samples. Even if the bottles were the right size, experts say, the company's process likely contaminated the tubes and could yield false test results. Fillakit employees, some not wearing masks, gathered the miniature soda bottles with snow shovels and dumped them into plastic bins before squirting saline into them, all in the open air, according to former employees and ProPublica's observation of the company's operations.

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federal coronavirus contractors

Hundreds Of Federal Coronavirus Contractors Were Hired Without Bids — Or Qualifications

Reprinted with permission from ProPublica.

A firm set up by a former telemarketer who once settled federal fraud charges for $2.7 million. A vodka distributor accused in a pending lawsuit of overstating its projected sales. An aspiring weapons dealer operating out of a single-family home.

These three privately held companies are part of the new medical supply chain, offered a total of almost $74 million by the federal government to find and rapidly deliver vital protective equipment and COVID-19 testing supplies across the U.S. While there's no evidence that they obtained their deals through political connections, none of the three had to bid against competing firms. One has already lost its contract for lack of performance; it's unclear if the other two can fulfill their orders on time, or at all.

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It’s A Fact: Supreme Court Errors Aren’t Hard To Find

It’s A Fact: Supreme Court Errors Aren’t Hard To Find

Reprinted with permission from ProPublica.

In 2007, a group of California Institute of Technology scientists working at NASA’s Jet Propulsion Laboratory filed suit against the venerated space agency. Many of the scientists had worked on NASA missions and research for years as outside employees. As part of efforts to tighten security measures after 9/11, in 2004 NASA started requiring outside workers to submit to the same kind of background checks used for federal employees, including questions about drug use. The scientists, some of the nation’s best and brightest, protested and resisted for years, and finally went to court to argue that the checks violated their privacy rights.

The case ultimately made it to the U.S. Supreme Court, where, in 2011, the justices unanimously sided with NASA. Justice Samuel Alito, who wrote the opinion, made a central point of noting that such background checks had long been commonplace in the private sector. Alito even cited a very specific statistic: 88 percent of all private companies in the country conduct such checks, he wrote.

It was a powerful claim in a decision with real consequences for American workers. It was also baseless.

Alito, it turns out, had borrowed the statistic from a brief filed in the case by the National Association of Professional Background Screeners. ProPublica asked the association for the source of its statistic. The association offered a variety of explanations, none of which proved true, and ultimately conceded it could not produce evidence that the 88 percent figure was accurate or say where it came from.

The decisions of the Supreme Court are rich with argument, history, some flashes of fine writing, and, of course, legal judgments of great import for all Americans.

They are also supposed to be entirely accurate.

But a ProPublica review of several dozen cases from recent years uncovered a number of false or wholly unsupported factual claims.

The review found an error in a landmark ruling, Shelby County v. Holder, which struck down part of the Voting Rights Act. Chief Justice John Roberts used erroneous data to make claims about comparable rates of voter registration among blacks and whites in six southern states. In another case, Justice Anthony Kennedy falsely claimed that DNA analysis can be used to identify individual suspects in criminal cases with perfect accuracy.

In all, ProPublica found seven errors in a modest sampling of Supreme Court opinions written from 2011 through 2015. In some cases, the errors were introduced by individual justices apparently doing their own research. In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.

Some of the mistakes were technical or arguably minor, and it is difficult to determine with certainty if they played a vital part in the court’s reasoning and final judgments.

But the NASA case was not the only one where a mistake involved a core aspect of the court’s ruling on an issue with widespread ramifications.

In 2013, the court issued a unanimous ruling in a case involving Fourth Amendment protections against unreasonable searches by the police. In the case, the court determined that when a drug-sniffing dog signals it smells an illegal drug from outside of a car, police have probable cause to search the entire car without a warrant. Justice Elena Kagan, who wrote the opinion, took on one of the central fears of those worried about innocent people being caught up in such police searches.

Kagan argued that the risk of “false positives” — instances in which a dog might mistakenly identify the presence of drugs — should be based on whether the dogs had been formally certified by police groups as reliable in their performance. She cited material from the Scientific Working Group on Dog and Orthogonal Detector Guidelines to support the court’s position.

However, none of the largest certification groups actually test for the risk of false positives. ProPublica reviewed standards and testing records and interviewed several experts on drug-sniffing dogs, including the head of the working group Kagan cited. He said her confidence in the certification process was misplaced.

“It’s important that it’s not just taken at face value to say just because the dog’s certified with a national organization that means they’re reliable,” said Kenneth Furton, the chairman of the working group, who now is provost at Florida International University.

Karen L. Overall, an applied animal behaviorist who served for a time as the co-chair of the dog working group, said she resigned from the group because she couldn’t endorse guidelines that didn’t insist on statistically measuring the reliability of police dogs.

ProPublica provided its findings on the seven mistakes to the court in early September and asked for interviews with Roberts and the other four justices who wrote majority opinions containing factual errors. The justices declined the requests and did not respond to any of the specific reporting. In an email, a spokeswoman said that, by policy, the court “does not comment on its opinions, which speak for themselves.”

In interviews, former law clerks for Supreme Court justices, including some who argue cases before the high court today, said any errors were surely accidental, produced by talented and devoted people doing complex work under daunting circumstances.

“The court, like any institution, never wants to get it wrong,” said Erin Murphy, a former law clerk for Roberts and now a lawyer with the firm Kirkland & Ellis.

The court’s rulings have been fiercely debated from the start of the republic, but most of the scrutiny has been aimed at justices’ legal reasoning or political bent. The risk of errors — that could cause embarrassment or have lasting legal consequences — has occasionally prompted calls for action. Thirty years ago, Kenneth Culp Davis, a leading legal scholar, went on a speaking tour calling on the court to establish its own research operation.

“When the court lacks the needed information, it usually makes guesses,” Davis told an audience at the University of Minnesota in 1987. “Much of our law is based on wrong assumptions about legislative facts.”

Supreme Court opinions contain two types of facts: “adjudicative” facts, which deal with legal procedure and precedent, and “legislative” facts, which are assertions about the outside world and how real life works.

Former Justice Harry Blackmun conceded in a 1984 opinion that there were limits to the court’s ability to be 100 percent right when it came to real-world facts.

“Like all courts,” Blackmun wrote, “we face institutional limitations on our ability to gather information about ‘legislative facts.’”

Still, this type of information can be important, even decisive, to rulings. In a 2015 opinion, Alito upheld an Arkansas inmate’s right to grow a beard while in prison in adherence to his Islamic faith. Alito accurately wrote the inmate’s belief that his religion called upon him to wear a beard was common to several schools of Islam, which further justified legal protections for the practice.

At least five previous errors in Supreme Court rulings have become public during the past decade, all involving legislative facts.

In a 2002 opinion, Kennedy wrote that untreated sex offenders commit new sex crimes at a startling rate, “estimated to be as high as 80 percent.” The statistic came from a magazine article, which did not provide a source. The article’s author has admitted to legal scholars the number was a guess. Studies of sex offenders indicate the true rate is a small fraction of the one Kennedy used.

A 2008 decision, also by Kennedy, said that within the U.S. criminal justice system, only six states allowed death sentences for defendants convicted of rape committed against a child. That was true, but incomplete. Such crimes were also punishable by death in military courts, under a law passed by Congress two years earlier. The author of a military law blog exposed the omission days after the opinion came down.

Perhaps the most alarming of the previously exposed inaccuracies came in an immigration case, Nken v. Holder. In 2008, the solicitor general’s office, which represents federal agencies before the Supreme Court, misled the justices about a key fact. The office said in a legal brief that the government routinely brings back immigrants it has deported if they later win their cases to stay in the U.S. The court’s opinion repeated the claim.

Records obtained by immigrant legal advocates at New York University show the government does not readmit people who’ve been wrongly deported, and the solicitor general’s office knew this.

Since certain parties like the solicitor general’s office have special standing with the court, errors in their arguments are more likely to be repeated in justices’ opinions, said Nancy Morawetz, the New York University law professor who exposed the falsehood in Nken. “It’s a highly imperfect process.”

In 2003, the court ruled in another matter, Demore v. Kim, that the federal government can detain certain immigrants facing deportation without bail for the entire time courts take considering their cases. Former Chief Justice William Rehnquist described immigrants’ time in cells as “brief,” lasting four months on average and sometimes less as judges worked through the appeals.

The truth was far different. When federal officials correctly analyzed their data, the average time immigrants spent in detention was nearly 13 months, triple what Rehnquist wrote. The solicitor general notified the court of the inaccuracies in August 2016; yet, to date, the error remains in the official opinion on the court’s website.

ProPublica decided to examine the court’s record for factual accuracy after the erroneous sex offender statistic became news earlier this year.

In the course of our examination, ProPublica vetted 83 majority opinions randomly selected from a five-year period, 2011 through 2015, and focused only on legislative facts. Just 24 of the 83 opinions contained such facts.

The research, of course, was far too limited to calculate an error rate for the court. That said, there were plenty of mistakes — seven in 24 opinions with legislative facts.

Our review showed justices appointed by both Democratic and Republican presidents had inaccuracies in their opinions. Three of the mistakes were made by Kennedy, long considered the court’s swing vote.

The chance that justices might rely on suspect material presented to them as part of cases has exploded in recent years. A virtual industry now exists to funnel information to the court through filings called amicus briefs. These come from people or groups that are not parties in a case before the court, but advocate for justices to rule a certain way, frequently by offering their special expertise on the subject at hand. Amicus briefs can be helpful to justices, who need to master an imposing host of issues. They are also risky because courts do not always scrutinize the briefs for accuracy.

Lawyers can introduce inaccuracies as evidence, especially on complex subjects, said Bryan Gowdy, a Florida appellate attorney who has argued before the Supreme Court. Such errors might be more understandable if the stakes weren’t so great.

“When you’re in a case where Betty Smith is suing the Jones Pharmaceutical company, and there’s a mistake like that, well that affects Betty Smith and the Jones Pharmaceutical company,” Gowdy said. “But when you’re at the U.S. Supreme Court and they make a mistake like that, it affects the entire country.”

Through most of the Supreme Court’s history, justices used statutes and legal precedents in their rulings, leaving out facts about the outside world. That shifted a century ago when Louis Brandeis joined the court, bringing a philosophy that judges needed to consider how life works in addition to what the law says. Brandeis, continuing a practice he had pioneered as a lawyer and scholar, regularly reviewed studies he found himself and included their results in opinions.

But adding these kinds of facts introduces the risk of errors. As a result, Davis, the legal scholar, floated the idea of the Supreme Court creating its own research team, modeled on the Congressional Research Service. The service is part of the Library of Congress and has a staff of trained researchers that pursues answers to lawmakers’ questions.

The justices did not follow Davis’ advice.

The court’s law library is a highly regarded and invaluable resource for justices, said Allison Orr Larsen, law professor at the College of William & Mary and former clerk for Justice David Souter. But it is not built to fact check briefs or the court’s opinions.

Every proposed solution for factual errors also causes problems, said Gerald Rosenberg, a University of Chicago professor of law and political science. Rosenberg is the author of “The Hollow Hope,” a hotly debated book arguing the courts are ineffective at propelling societal change.

A court research service suggests the justices are writing laws, he said, not rulings based on the law. At the same time, Rosenberg said ProPublica’s reporting indicates that the justices remain vulnerable to mistakes, both large and small.

“What do we do with the fact that they’re either consciously playing fast and loose,” Rosenberg said, “or they’re just not aware?”

Here are summaries of six of the recent Supreme Court opinions in which ProPublica found errors. The seventh will be the subject of a subsequent article.

A Sampling Of Errors

NASA v. Nelson

In 2011, the justices unanimously held that independent contractors working for the federal government could be subjected to background checks that ask open-ended questions about their private lives, including drug use. Federal employees submitted to such checks. It was the norm in the private sector, too.

At least that’s what Alito asserted in writing the opinion for the unified court. “The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers,” Alito wrote.

The court received eight amicus briefs in the case, seven of them from privacy, civil rights and labor advocates supporting the contract employees. The one brief backing the federal government came from a collection of private investigation and background check industry groups.

The industry groups argued this kind scrutiny is routine, and essential in protecting the government and private companies from bad hires.

The filing included a section detailing who submitted the brief. One of the industry groups was the National Association of Professional Background Screeners, which said in the brief that its “clients are among the more than 88% of U.S. companies that perform background checks on their employees.”

The filing doesn’t say where the percentage cited by the background screeners comes from, a deficiency first documented by Larsen, the law professor at the College of William & Mary, in her study of the high court’s use of amicus briefs.

In truth, research into employment screening is scant, and hard numbers nonexistent.

The Society for Human Resource Management has surveyed its members about backgrounding practices multiple times and its reports are the only publicly available information on the subject. The society published survey results in January 2010, shortly before the background check groups filed their brief. The society’s results show that 92 percent of those surveyed check applicants’ references and 74 percent said they perform criminal background checks, but the results don’t include the 88 percent figure.

The society’s survey also reflects practices of a small subsection of American businesses, gathering nearly all its responses from companies that employ 100 or more workers. Less than 2 percent of U.S. companies are that size, according to Census Bureau data.

ProPublica asked the National Association of Professional Background Screeners to provide the basis of its “more than 88%” figure. Melissa Sorenson, the association’s executive director, initially said the statistic was from the human resources society’s survey. After ProPublica informed her the survey did not include that number, Sorenson gave two answers she said were based on her conversations with a lawyer who represented the association on the brief.

First, Sorenson said the association got an advance look at the human resources society’s survey results, “so we were running with preliminary data that wasn’t public.” Preliminary results were slightly different from the published report, she said.

But Michael Aitken, the human resources society’s vice present for government affairs, said he couldn’t find any record his organization had provided anyone with preliminary survey results. And neither the preliminary nor the final results included the 88 percent figure, Aitken said.

Then Sorenson said the background screener association calculated the number by combining data from two separate questions in the human resources society’s survey. One question asked about background checks on job applicants, the other about checks on existing employees, she said.

The survey only asked about checks performed on job applicants, the published results show. Asked again for an underlying source, the background screeners association responded that it had no answer.

“Unfortunately, we have not identified anything in our records to shed further light,” a spokesman said by email.

ProPublica found the background screeners association featured the 88 percent number in its lobbying materials nine months before the human resources society’s survey that included the background-check question was conducted.

Larson, the William & Mary law professor, said she’d assumed the statistic had some basis in reality. “This is much worse than I expected,” she said.

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Houston Police End Use Of Drug Tests That Helped Produce Wrongful Convictions

Houston Police End Use Of Drug Tests That Helped Produce Wrongful Convictions

Reprinted with permission fromProPublica.

The Houston Police Department has ended its longstanding practice of using $2 chemical kits to make drugs arrests, a policy that had contributed to hundreds of wrongful convictions in recent years.

In announcing the change, Houston Police Chief Art Acevedo said the department was abandoning the use of the kits, known formally as chemical field tests, because conducting the tests in the field had exposed officers to the dangers posed by potentially lethal drugs such as fentanyl. He did not address the recent scandal that had shown the unreliable tests to have often been the only evidence used to gain guilty pleas from innocent defendants.

The hundreds of wrongful convictions, reported on by ProPublica and the New York Times last July, had moved then-Harris County District Attorney Devon Anderson to require that any positive field test be confirmed in the crime lab before a guilty plea could be won. ProPublica, in a subsequent article on the field tests used to identify fentanyl, had highlighted the threat to police officers.

The Drug Enforcement Administration last year warned local police that fentanyl, a synthetic opioid sold on the street, is toxic in tiny doses when breathed in or exposed to skin. In May, a police officer in Ohio collapsed and was hospitalized after merely brushing the drug off his uniform with his bare hand. Acevedo said Houston police recently recovered three kilos of fentanyl.

“That’s quite a few doses, lethal doses, of this pretty bad substance,” Acevedo said. The Houston Forensic Science Center also identified another potent synthetic opioid, carfentanil, in a drug evidence sample earlier this year.

The field tests have been used by police departments across the country for decades. Officers simply drop a suspicious substance into a pouch of chemicals and use supposedly telltale changes in color to make arrests for cocaine, methamphetamine, marijuana and other illegal drugs. But virtually everyone in the criminal justice system – prosecutor, judges, lab scientists, defense lawyers – has had plenty of reason to know the tests are faulty. Courts in most states, in fact, bar the tests from being used in evidence in a criminal trial, saying the tests do not constitute forensic science.

But as increasing numbers of criminal drug cases are resolved through plea bargains, the tests have become enormously consequential. District attorneys in many jurisdictions allowed prosecutors to use the tests to gain guilty pleas even without confirmation by a lab.

ProPublica’s reporting on the long and troubled use of the tests prompted the district attorney’s office in Portland, Oregon, to alter its practice and require lab confirmation before guilty pleas were entered. A modest review of recent cases in Portland done by the prosecutor’s office resulted in the vacating of five criminal convictions.

In 2016, a panel created by lawmakers in Texas formally termed the field tests too unreliable to trust in criminal cases, and called on crime laboratories across the state to confirm drug evidence in every prosecution.

Without field tests, Acevedo said officers in Houston and across Harris County will instead use their own “expertise” in deciding when to make drug arrests. Officers have “a wealth of training and experience into what narcotics look like, what they feel like in terms of the packaging, the color, the appearance,” he said.

Joe Gamaldi, president of the Houston Police Officers’ Union, said that dropping field tests makes officers’ jobs both safer and easier. Gamaldi acknowledged that making arrests based only on officers’ beliefs about whether substances are illegal drugs does create a risk of wrongful arrests. “There is certainly that fear,” he said.

Former Houston Police Chief Charles A. McClelland had told ProPublica last year that he thought the field tests should be abandoned, saying officers were not chemists and shouldn’t be conducting experiments on the hoods of their patrol cars.

On Friday, McClelland told the Houston Chronicle that the policy change was “a very positive step for the criminal justice process.”

“I don’t think any law enforcement agency in America should be doing this anymore,” he told the Chronicle.

Alex Bunin, Harris County’s chief public defender, said he had no love for the field tests, calling them erratic and unreliable. But leaving decisions about arrests to an officer’s mere observations, he said, could wind up producing wrongful convictions too, maybe even greater numbers.

Ryan Gabrielson is a reporter for ProPublica covering the U.S. justice system.

How Jeff Sessions Helped Kill Equitable School Funding In Alabama

How Jeff Sessions Helped Kill Equitable School Funding In Alabama

Reprinted with permission from ProPublica.

In the early 1990s, children across Alabama’s large rural stretches still attended faltering public schools, some with exposed wiring and rainwater leaking into classrooms. The education was in disrepair, too. Teachers couldn’t assign homework for lack of textbooks. A steel mill announced it would no longer hire local high school graduates because most tested below the 8th grade level. In short, Alabama’s most economically disadvantaged students, primarily black children and those with disabilities, were missing out on a basic education.

Then, for a moment, change seemed possible. A civil-rights lawsuit challenging the system for funding Alabama’s schools succeeded, and the state’s courts in 1993 declared the conditions in the poor schools a violation of Alabama’s Constitution. Gov. Guy Hunt, who had battled the litigation, accepted defeat, and vowed to work with the courts to negotiate a solution for equitably funding all of Alabama’s schools.

“This is a unique and timely opportunity to make historic improvements in Alabama’s public schools for our children,” Hunt said at a news conference in 1993, “and we will not miss this opportunity.”

Jeff Sessions had other ideas.

Sessions, elected Alabama attorney general just a year after the courts had begun review of reform measures, didn’t think the state’s courts should have any role in deciding how Alabama educated its children. He hired expensive private lawyers to fight the findings of the court — first at the district level, later at the state Supreme Court level. He succeeded in removing a judge sympathetic to the plight of poor students from the case. He filed appeal after appeal, insisting he be heard even after the state’s highest court issued final decisions. He fought every effort by the court to require that schools in the state’s poorer communities be funded at the same levels as its wealthier ones.

Sessions’s efforts won out — both in the short term, and in the end. His legal jousting across his two years as attorney general effectively prevented any overhaul to the way schools were financed in Alabama, and as a result, helped drag out a case that would ultimately collapse years later when the makeup of the state’s top court turned over.

ProPublica tracked down and reviewed thousands of pages of court filings from the school funding case in Alabama. The legal argument Sessions made — again and again, and in the face of repeated rebuffs — turned on his view of the separation of powers. Only the legislature had the authority to decide how Alabama funded its schools, he maintained. Indeed, Sessions never spent a legal sentence arguing that Alabama’s educational system was equitable, that it didn’t clearly favor white and wealthier children while short-changing others. He simply argued the courts had no rightful place saying or doing anything about it.

“The court below is bound to stay out of the way so that the legislature, the executive, and the administrative agencies can act to accomplish their constitutionally prescribed duties,” Sessions’ legal team wrote in one brief.

Today, Sessions has been nominated by President Trump to serve as the country’s next attorney general. At his confirmation hearings, Sessions pledged to uphold the nation’s laws, regardless of his own beliefs. But his Democratic detractors have openly expressed doubts he’d enforce legal decisions with which he or the administration didn’t agree. Already, any number of Trump administration initiatives have provoked the threat of legal challenge, and indeed over the weekend the president’s order limiting immigration from some Muslim countries wound up in federal court.

“The arc of the moral universe does not just naturally curve toward justice; we must bend it,” Cory Booker, the Democratic senator from New Jersey, said in testifying against confirmation for Sessions. “America needs an attorney general who is resolute and determined to bend the arc. Sen. Sessions’ record does not speak to that desire, intention or will.”

Trump transition officials did not respond to repeated request to interview Sessions.

The complicated and volatile history of desegregating the American South is full of examples of local officials deriding and even defying federal court orders. In this instance, however, Sessions was taking on his own state’s courts — Alabama judges with backgrounds not unlike his.

By the 1990s, Alabama’s educational problems were many. But nearly all came down to money. State government provided a share of the public education funding, but the most critical revenue came directly from local property taxes. Schools flourished in wealthy communities, as a result, and struggled in impoverished ones.

DeWayne Key, then superintendent of a low-income school district in northern Alabama, rallied other rural education leaders to fight what they regarded as an unequal system. They formed a new organization, the Alabama Coalition for Equity, and in 1990 filed a civil-rights lawsuit in the state courts seeking “equity and adequacy,” Key said.

The plaintiffs’ argument was essentially this: The unequal funding violated the state Constitution’s promise of an adequate education for all children. Two years of pitched legal battle followed, as lawyers for the poor schools introduced volumes of statistical evidence at trial, one conducted at the district court level. The plaintiffs triumphed, and in early 1993, Circuit Judge Eugene Reese declared Alabama’s public-school funding to be unconstitutional.

“The quality of educational opportunities available to a child in the public schools of Alabama depends upon the fortuitous circumstance of where that child happens to reside and attend school,” Reese wrote in his decision holding the state’s educational funding mechanism in violation of the state’s Constitution.

Reese gathered the state’s elected leaders, education officials and experts into committees to set up reform plans that he would impose through court orders.

Then Gov. Hunt had no sooner pledged to help rectify the state’s school financing than he was out of office, convicted of violating an ethics law. His successor, Fob James Jr., had little use for the court’s decision, and in Sessions he found a legal combatant eager for active resistance.

Sessions had been federal prosecutor in Alabama from 1981 to 1993, and had earned a nomination by President Reagan to the federal bench. But Sessions underwent a bruising and ultimately failed nomination fight. He was pilloried during his Senate hearings as a man hostile to civil rights, maybe even an outright racist.

With the support of James, Sessions, his career back on track, set out to win a lawsuit the state had already officially lost, and lost badly. Sessions hired a slate of outside lawyers, including some of Alabama’s most highly regarded litigators. He sought to vacate the award of legal fees to the plaintiff lawyers that Reese had ordered. He successfully ousted Reese from the case, convincing a judicial investigatory panel that Reese had inappropriately campaigned for election to the state Supreme Court by touting his role in the school case. Reese officially removed himself, following the panel’s recommendation.

Violations of Alabama children’s constitutional rights weren’t discussed, it appears, because the state lawyers believed they were none of the courts’ business. Judges playing any role in a school system run by Alabama governors and lawmakers was “a grave wrong,” they asserted.

William Gray Jr., James’ chief legal advisor, said his boss “strongly believed that the legislature ought to determine those things that were legislative” without judges intruding. Of Sessions, he added, “the attorney general’s office agreed with our fundamental view of the Alabama constitution.”

Sessions had little immediate luck with the state’s judges. Having successfully removed Reese from the case, Sessions asked Judge Sally Greenhaw, who took over the case from Reese in late August 1995, to dismiss the entire lawsuit. Greenhaw declined.

Sessions and his lawyers were unfazed; they filed their appeal to the state Supreme Court less than a week later.

Their arguments repeatedly referenced the separation of powers on which federal and state governments are structured. The three branches — executive, legislative, and judicial — each have their own duties and authorities separate from the other two. A governor directs state agencies. Lawmakers pass laws and set spending. Courts resolve disputes.

“Of course the courts may decide whether an act of Congress or an act of a state legislature, or an act of a governor or an act of a president, violates guaranties of the federal or state constitution,” the state’s lawyers wrote. “There it stops.” Sessions argued that the courts were “bound to stay out of the way” of complex systems like public education.

Lawyers for the plaintiffs saw the separation of powers differently. The plaintiffs countered in their briefs that the Alabama Constitution did not just separate the branches, but gave each the authority to check the other two. Further, the plaintiffs argued, the restrictions that Sessions’ team wanted to place upon judges would render them unable to protect civil rights.

To illustrate the point, they wrote that if Alabama’s governor “barred all political speech,” then Sessions’ position would mean “this court could declare his actions unconstitutional, but could not order him to reverse them.”

Alabama’s high court ruled against Sessions’ team again and again, ultimately rejecting its legal reasoning in three different opinions between 1995 and 1997. Regardless, Sessions and James effectively won even as the losses piled up. To explain how requires a brief descent into the arcane details.

When the trial court ruled the state’s school funding unconstitutional in 1993, Reese had split the case into two parts. The first, regarding the system’s constitutionality, was called the “liability” ruling, because it declared Alabama officials were liable for failing to provide a basic education. The state did not appeal this ruling within the required 42 days, so it quickly became sealed as final. The second part, called the “remedy” phase, would include negotiating fixes and then implementing them.

By the time Sessions was sworn in as Alabama attorney general in January 1995, only the “remedy” case was supposed to be in play. But the state’s new top lawyer relentlessly attacked the whole by stalling any work on reforms, court records show. Sessions’ legal team swiftly appealed any decision, once even asking the state Supreme Court justices to immediately reverse themselves, which locked the case up for months.

Meanwhile, Gov. James opened another front in a war on the judiciary. James lobbied for three amendments to the state constitution on the June 1996 ballot directly related to the school funding litigation. The measures gave the state Senate the power to impeach members of the state Supreme Court, required lawmakers to approve any court orders that required state spending, and allowed non-lawyers to serve on the judicial inquiry panel. All passed with ease.

On election night, the Associated Press reported the amendments “were the result of Gov. Fob James’ efforts to rein in the judiciary and re-establish, in his view, the separation of the three branches of government.”

On Jan. 10, 1997, Alabama’s Supreme Court turned aside the thrust of Sessions’ arguments that the courts were outside their jurisdiction. “This objection to the exercise of judicial review of the constitutionality of Alabama’s public school system is tenuous at best,” Justice Ralph Cook wrote in the majority opinion. Judges had been a check on lawmakers since before Alabama became a state and maintained every right to serve in that role.

But while the Supreme Court had upheld the ruling against Alabama’s school system, it decided that the lower court should have first given the governor and legislature a chance to fix the shortcomings by themselves. The justices voided the trial court’s “remedy” orders and set a one-year deadline for lawmakers to enact reforms.

Sessions had by then won election to the U.S. Senate, so authority over the case moved to William Pryor, Sessions’ hand-picked successor. Seven days after the high court ruled, Pryor filed a motion asking the justices to reconsider the same legal arguments. (Pryor has recently been mentioned as a possible U.S. Supreme Court nominee, with Sessions reportedly favoring his candidacy.)

Eleven months later, the Supreme Court yet again reaffirmed the school funding situation was unconstitutional, but threw out the deadline for the legislature to enact reforms. The courts, in effect, now just identified constitutional violations, but no longer took any action to fix them.

Alabama lawmakers over the years began shifting property tax money into a trust for education, which boosted funding for the poorest schools slightly, but far less than the overhaul ordered in 1993. Otherwise, little improved.

By 2002, only one of the Supreme Court justices who had ruled on the finding case remained. The reconstituted court, surprising nearly everyone involved in the longstanding litigation, reversed the ruling on the funding’s constitutionality. No new arguments had been made; no new briefs had been filed.

Gray, Gov. James’ onetime legal advisor, said the justices had “decided on their own” to take the action.

In its opinion, the Supreme Court adopted wholesale the long-defeated reasoning of Sessions’ legal team. Any move to eliminate the school funding disparity “that the judiciary could impose would, in order to be effective, necessarily involve a usurpation of that power entrusted exclusively to the Legislature,” the justices wrote.

Today, Alabama’s public schools remain a story of inequality. The poorest districts only receive state funds to cover the minimum instruction, but nothing from local property taxes for music or art, or even enough to buy textbooks for each student. Analyses of test scores have shown Alabama ranks low nationally, especially in math, with both white and black students far behind their peers in other states.

The situation is especially dire for students with developmental disabilities, like autism, said Nancy Anderson, associate director of the Alabama Disabilities Advocacy Program. Poor schools are unable to pay for teachers to get even basic training in how to help these students.

Anderson attends individual student planning meetings for students with disabilities, and every suggested remedy brings up the same concern. “The elephant in the room is always, what’s it going to cost?” Anderson said. “And I don’t necessarily see that getting better any time soon.”

IMAGE: Senator Jeff Sessions (R-AL) delivers a nominating speech for Republican U.S. Presidential candidate Donald Trump at the Republican National Convention in Cleveland, Ohio, U.S. July 19, 2016. REUTERS/Mike Segar/File Photo