Prisoners look out of their cell as Department of Homeland Security Secretary Kristi Noem tours the Terrorist Confinement Center or CECOT, on March 26, 2025, in Tecoluca, El Salvador. (Photo by Alex Brandon-Pool/Getty Images)
WASHINGTON — The White House Tuesday defended the deportation of a national from El Salvador to a notorious mega-prison in that country, despite Trump administration officials admitting in court filings that the removal was a mistake.
Kilmar Armando Abrego Garcia of Beltsville, Maryland, was ordered in 2019 to be removed from the United States by an immigration judge, but was granted protection from removal because it was more “likely than not that he would be persecuted by gangs in El Salvador” if he were returned, according to court documents.
Yet on March 15 he was placed on one of three deportation flights to El Salvador. U.S. Immigration and Customs Enforcement and the Department of Justice admitted in separate court filings that his deportation to the brutal prison, Centro de Confinamiento del Terrorismo, or CECOT, was an “administrative error.”
“This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego-Garcia’s purported membership in MS-13,” ICE Acting Field Office Director of Enforcement and Removal Operations Robert L. Cerna wrote in a Monday court filing.
Simon Y. Sandoval-Moshenberg, the attorney for Abrego Garcia, is requesting a preliminary injunction from the U.S. District Court of Maryland, which would require the Trump administration to make a request to the government of El Salvador for Abrego Garcia to be returned to U.S. custody.
The lawyer also wants a halt to U.S. payments to the government of El Salvador for detaining his client at the “notorious CECOT torture prison.”
A hearing is set for 1 p.m. Eastern Friday before U.S. District Judge Paula Xinis. She was appointed by former President Barack Obama in 2016.
Press secretary defends decision
White House press secretary Karoline Leavitt Tuesday said that Abrego Garcia was a leader of the MS-13 gang, despite his deportation being “a clerical error.”
“The administration maintains the position that this individual who was deported to El Salvador and will not be returning to our country was a member of the brutal and vicious MS-13 gang,” she said.
She said the U.S. Department of Homeland Security has evidence of his gang activity that she has seen and she also alleged that Abrego Garcia was involved in human trafficking.
Sandoval-Moshenberg, the attorney for Abrego Garcia, has denied his involvement in any gangs, noting he has no criminal charges or convictions in the United States, El Salvador or any other country.
“Abrego Garcia is not a member of or has no affiliation with Tren de Aragua, MS-13, or any other criminal or street gang. Although he has been accused of general ‘gang affiliation,’ the U.S. government has never produced an iota of evidence to support this unfounded accusation,” according to court filings.
Leavitt also dismissed the 2019 order from an immigration judge granting Abrego Garcia protections from removal.
Federal law bars the removal of an individual if they will face persecution, known as a “withholding of removal.” Because of this condition, Abrego Garcia was required to check in with ICE each year, which he has complied with since 2019, according to court filings.
“Who does that judge work for? It was an immigration judge who works for the Department of Justice at the direction of the attorney general of the United States, whose name is Pam Bondi, who has committed to eradicating MS-13 from our nation’s interior,” Leavitt said.
Leavitt said that 17 more men were deported to CECOT Monday. The U.S. is paying El Salvador’s government $6 million to detain all those deported there.
Identified from news story
Abrego Garcia, who is married to a U.S. citizen with whom he has a child, was detained by ICE on March 12 while driving with his 5-year-old son near Baltimore, Maryland. He was informed by ICE officials that his “status had changed,” according to court filings.
Abrego Garcia’s wife, Jennifer Vasquez Sura, “was called and instructed to appear at their location within ten minutes to get her five-year old son, A.A.V.; otherwise, the ICE officers threatened that the child would be handed over to Child Protective Services.”
Vasquez Sura tried to call the ICE facility that her husband was transferred to and inform officials that he could not be sent back to El Salvador.
“Her attempts to protest by saying that he had won protection from being removed to El Salvador fell on deaf ears,” according to court filings.
Within three days, he would become one of the 261 men on one of three deportation flights to CECOT in El Salvador, despite a temporary restraining order in place from a district court judge from the District of Columbia that applied generally to all the deportations.
Vasquez Sura was able to identify him from a news article when a photo showed men sent to the prison with their heads shaved and arms over their necks. She recognized her husband’s scar on his head and his tattoo.
DOJ arguments
Department of Justice attorneys, on behalf of the Trump administration, argued that the district court in Maryland lacks jurisdiction because Abrego Garcia is no longer in U.S. custody and his lawyers have not shown it is likely he could be returned.
“There is no showing that any payment made to El Salvador is yet to occur; no showing that El Salvador is likely to release CECOT detainees but for any such payment; no showing that El Salvador is even inclined to consider a request to release a detainee at the United States’ request,” according to the DOJ filing.
The Department of Justice also argues that his attorney has “not clearly shown a likelihood that Abrego Garcia will be tortured or killed in CECOT.”
“While there may be allegations of abuses in other Salvadoran prisons—very few in relation to the large number of detainees—there is no clear showing that Abrego Garcia himself is likely to be tortured or killed in CECOT,” according to DOJ.
The Department of Justice said the district court should defer to the Trump administration’s determination “that Abrego Garcia will not likely be tortured or killed in El Salvador.”
“Although the government erred in removing Abrego Garcia specifically to El Salvador, the government would not have removed any alien to El Salvador for detention in CECOT if it believed that doing so would violate the United States’ obligations under the Convention (Against Torture),” according to DOJ.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard arguments at the E. Barrett Prettyman Federal Courthouse on March 24, 2025, over a challenge of a lower court’s restraining order barring the administration from deporting Venezuelan immigrants under a wartime law. (U.S. General Services Administration photo)
WASHINGTON — The Department of Justice late Monday invoked the “state secrets privilege” to block a federal judge from obtaining information about deportation flights carried out under a wartime law.
District of Columbia District Judge James E. Boasberg has been trying to determine if the Trump administration violated a restraining order he had placed in connection with the deportations of Venezuelans under the Alien Enemies Act of 1798.
The Trump administration said Monday further details could not be provided about the flights to El Salvador, where the alleged gang members were sent to a mega-prison.
The filing, signed by Attorney General Pam Bondi, uses the state secrets privilege to refuse answering questions posed in a March 18 order from Boasberg, the chief judge for the U.S. District Court for the District of Columbia. The privilege is a common-law doctrine that protects sensitive national security information from being released.
“The Court has all of the facts it needs to address the compliance issues before it,” according to the DOJ filing. “Further intrusions on the Executive Branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the Court lacks competence to address.”
In his March 18 order, Boasberg wanted details about what times the flights took off from the United States, when they left U.S. airspace, when they landed in their designated countries, when the immigrants being deported were subject to the Alien Enemies Act and the number of people on the flights who were subject to the Alien Enemies Act.
The DOJ filing cites national security issues and says that “confirming the exact time the flights departed, or their particular locations at some other time, would facilitate efforts to track those flights and future flights.”
“In turn, disclosing any information that assists in the tracking of the flights would both endanger the government personnel operating those flights and aid efforts by our adversaries to draw inferences about diplomatic negotiations and coordination relating to operations by the Executive Branch to remove terrorists and other criminal aliens from the country,” according to the filing. “Simply put, the Court has no cause to compel disclosure of information that would undermine or impede future counterterrorism operations by the United States.”
Appeals court action
The filing followed the Trump administration’s request for an emergency hearing before a District of Columbia federal appeals court.
A panel of three federal appellate judges seemed split Monday while hearing the Trump administration’s challenge of the lower court’s restraining order on the use of the wartime law to deport, without due process, the Venezuelan nationals.
Judge Justin R. Walker, who was appointed to the U.S. District Court of Appeals for the District of Columbia Circuit by President Donald Trump, appeared to align with the Department of Justice’s arguments, while Judge Patricia A. Millett, whom Democratic President Barack Obama appointed, raised serious questions about due process.
The position of Judge Karen LeCraft Henderson, a President George H.W. Bush nominee who is the third member of the panel, spoke less than the others and revealed little about her position.
The panel will rule on the government’s challenge of the temporary restraining order placed by Boasberg, the chief judge for the U.S. District Court for the District of Columbia. The Justice Department argued the order undercut the president’s wartime authority and that the suit by civil rights groups should have been brought to a different court.
Groups led by the American Civil Liberties Union argued Boasberg’s order correctly defended due process protections.
The D.C. Circuit hearing followed back-and-forth hearings before Boasberg, who has vowed to determine whether the Trump administration violated his March 15 oral order to turn around deportation planes.
After Boasberg issued his order, three deportation planes still landed in El Salvador, with mostly Venezuelan men taken to a notorious mega-prison.
Shortly before Monday’s hearing, Boasberg rejected the latest Trump administration attempt to vacate his restraining order that barred use of the proclamation without due process.
In Monday’s order, Boasberg said anyone who is removed from the U.S. under the act is “entitled to individualized hearings.”
“Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge,” he wrote. “Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”
Due process
Millett grilled Department of Justice attorney Drew Ensign on the Trump administration’s view on what due process should be granted to those subject to the proclamation, which states that any Venezuelan national 14 and older with suspected ties to the Tren de Aragua gang may be deported.
Ensign said the Trump administration doesn’t agree that those subject to the proclamation the president signed March 14 should be notified they are being removed under the Alien Enemies Act.
“We agree that if you bring habeas (corpus) that you can raise such challenges,” he said.
A habeas corpus claim asserts someone is unjustly imprisoned and can be used to challenge immigration detention.
Millett said the deportees had no opportunity to raise such a claim.
“Nazis got better treatment under the Alien Enemies Act,” Millett said, referring to German nationals who were able to have a hearing before a board to challenge their removal when the wartime law was invoked during World War II.
The act had previously been invoked only three times in U.S. history, all during wartime.
Millett questioned how the Venezuelans on the first two deportation planes could have challenged their deportations.
“Those people on those planes on that Saturday had no opportunity to file habeas or any type of action to challenge the removal under the (Alien Enemies Act),” she said.
Lee Gelernt, American Civil Liberties Union lead attorney, said that Venezuelans who were removed were “designated (Tren de Aragua) without any advance notice, rushed to planes” and given papers that “specifically says you are not entitled to review.” He said ACLU is preparing to enter that evidence into the court record.
Jurisdiction
Walker questioned the venue where the lawsuit was filed. He asked why the challenge wasn’t brought in a Texas district court, because the original five men who brought the suit were detained there.
Gelernt said a challenge could have been brought in Texas, but that it was not clear where all the detainees subject to the proclamation were being held.
“We certainly weren’t looking just to get our five individuals from being sent to a Salvadorian prison,” Gelernt said. “This would have had to be a class. If the government is suggesting that we could have gone in there for every individual, absolutely not. We did not know who had been designated. This has all been done in secret.”
Walker also questioned how a temporary restraining order could order planes that had already left the U.S. to return.
“I’m wondering if you can point me to a district court (temporary restraining order) or injunction that survived appeal that stopped an ongoing, partially overseas national security operation in the way that this… did (to) order planes to take foreigners from international waters to the United States,” Walker asked Gelernt.
Gelernt said that the issue before the appeals court was not about the order to return deportation planes.
“The government cannot take the position that it’s an interference, by this court, on national security grounds, to give people (due) process,” he said.
New court filings revealed several immigrants on the March 15 flights were returned to the U.S. from El Salvador. They include a Nicaraguan national and eight Venezuelan women who were returned because the mega-prison is for men only.
DOJ argues notice not needed
Ensign argued that the order blocking the implementation of the Alien Enemies Act wrongly constrained the president’s wartime authority.
Millett said that the issue wasn’t about the president’s authority to use the Alien Enemies Act, but how the administration used it.
“The question is whether the implementation of this proclamation without any process to determine whether people qualify under it,” she said.
She asked Ensign if the appeals court lifting the stay would lead to a situation where “people are lined up and put on planes without notice or time to file for habeas, even though the government agrees that … they have a right to have the decision made about whether they even qualify under the proclamation?”
Ensign reserved that option for the government.
“If the (temporary restraining order) is dissolved, the government believes there would not be a limitation and that the statute does not require such notice,” he said.
American Civil Liberties Union lead attorney Lee Gelernt holds a press conference outside the U.S. District Court for the District of Columbia after a March 21, 2025, hearing on deportation flights that occurred despite a court’s restraining order in place. (Photo by Ariana Figueroa/States Newsroom)
WASHINGTON — A federal judge Friday probed the U.S. Department of Justice about whether the Trump administration knowingly defied his court order to return deportation flights to the United States and questioned the president’s authority to invoke a wartime law during peacetime.
The case, which is likely to head to the U.S. Supreme Court, will test President Donald Trump’s authority to invoke the Alien Enemies Act of 1798 and apply it to any Venezuelan nationals ages 14 and up who are suspected members of the Tren de Aragua gang amid his mass deportation plans.
Three deportation flights containing some Venezuelans subject to the proclamation that Trump signed last Friday were in transit when U.S. District Court Judge James Emanuel Boasberg issued a temporary restraining order to block the removals. But the administration continued sending the men to a notorious mega-prison in El Salvador.
The Trump administration published a highly produced video detailing the operation, but has not been forthright with answers to questions Boasberg posed about it.
“The government’s not being terribly cooperative at this point, but I will get to the bottom of whether they violated my order, who ordered this and what the consequences will be,” Boasberg said Friday.
Wartime law
Boasberg also pressed the Department of Justice attorney Drew Ensign on whether the Trump administration can deport people under the Alien Enemies Act without allowing the deportees to prove they are not members or associated with the Tren de Aragua gang.
“How do they challenge that removal?” Boasberg asked.
The Alien Enemies Act allows nationals of a country deemed an enemy of the U.S. to be detained and deported without due process of law regardless of immigration status.
Boasberg also raised concerns of using the proclamation when the U.S. is not at war.
“The policy ramifications for this are incredibly troublesome,” Boasberg said of the Alien Enemies Act. “This is a long way from the heartland of the act.”
A panel of judges in the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments Monday afternoon on the Trump administration seeking an emergency stay on the restraining order.
Restraining order
Boasberg asked DOJ attorney Ensign to clarify how he interpreted the oral temporary restraining order issued on March 15.
He asked Ensign if he relayed to the Trump administration that his order included returning any Venezuelans back to the U.S. who were deported under the wartime authority.
“I understood your intent, that you meant that to be effective at that time,” Ensign said of the oral temporary restraining order.
In filings, the Department of Justice has argued that Boasberg’s oral argument was not binding because it was not written.
For nearly a week, the Department of Justice has evaded pointed questions from Boasberg about the timing of the deportation flights on March 15.
Boasberg said Thursday he would give the Trump administration until Tuesday to submit a declaration on whether the government was invoking the state-secrets privilege and a brief “showing cause why they did not violate the Court’s Temporary Restraining Orders by failing to return class members removed from the United States on the two earliest planes that departed on March 15, 2025.”
In Friday filings, Trump officials said they are currently having Cabinet-level conversations about using that privilege to block Boasberg from obtaining details about the timing of the deportation flights.
Flight location an issue
The Department of Justice has also argued that because the flights were no longer in U.S. airspace or territory when Boasberg issued the restraining order, they were not under U.S. courts’ jurisdiction.
Lead attorney for the American Civil Liberties Union Lee Gelernt pushed back on that claim. He told Boasberg that some immigrants on those deportation flights to El Salvador were returned to the U.S. because of mistakes and that the El Salvadoran “government would not take them.”
He said that included someone who was not a Venezuelan national, and a woman because the mega-prison is for men only.
He said the ACLU will submit an affidavit late Friday with more details.
Gelernt said the ACLU is also questioning the type of removal for people on the third flight, even though the Trump administration said those on that flight had final orders of removal and were not subject to the Alien Enemies Act.
Gelernt argued that in immigration law, those with final orders are required to be notified what country they are being deported to. He said that was not the case with the immigrants on the third flight, which originally went to Honduras before heading to El Salvador.
“We asked the judge to clarify that with the government, because it seems very doubtful that Venezuelans had a final order that said you could be removed to El Salvador,” Gelernt said to reporters after Friday’s hearing.
The White House earlier this week said of the men on the deportation flights, 137 were alleged Tren de Aragua members and deported under the Alien Enemies Act.
Attorneys for several of the 238 Venezuelan men deported argue their clients are not members of the gang and were only targeted by immigration officials because they had tattoos and were Venezuelan nationals.
El Salvador prison
Gelernt said that because the Trump administration is paying the government of El Salvador $6 million to imprison the men, he believes those men who were deported under the wartime law can be returned, although it would be a lengthy process.
“I think we very much think the federal court can order the U.S. to get them out, since they’re constructively in U.S. custody,” he said outside the courtroom. “The U.S. is apparently paying for it all. (El Salvador is) doing it at the behest of the United States.”
Human Rights Watch, a nonprofit that monitors human rights conditions around the world, has raised major concerns with the conditions of the prison and has noted that the group “is not aware of any detainees who have been released from that prison.”
Nicolás Maduro, Venezuela’s authoritarian president, called this week for the men taken to the mega prison to be returned to Venezuela, calling on El Salvador president to “not be an accomplice to this kidnapping, because our boys did not commit any crime in the United States, none,” according to CNN.
“They were not brought to trial, they were not given the right to a defense, the right to due process, they were deceived, handcuffed, put on a plane, kidnapped, and sent to a concentration camp in El Salvador,” Maduro said.
Several of the men who were transferred to El Salvador’s prison initially fled Venezuela because they experienced violence from officials after they partook in political protests against the Maduro regime, according to court filings.
President of El Salvador Nayib Bukele said hundreds of Venezuelan migrants deported from the U.S. to a prison in his country under the Alien Enemies Act would perform hard labor for up to a year, potentially longer. In this photo, he delivers a speech during the first press conference of the year at Casa Presidencial on Jan. 14, 2025, in San Salvador, El Salvador. (Photo by Alex Peña/Getty Images)
WASHINGTON — In new court briefings Thursday, attorneys for several Venezuelan immigrants say their clients either had no criminal record or had cases before an immigration judge when they were deported under the Trump administration’s wartime authority — despite a federal judge ordering the return of the flights to the United States.
Attorneys for four men who were sent to a notorious maximum security prison in El Salvador said their clients had two things in common: They were accused of being members of the Tren de Aragua gang under the Alien Enemies Act of 1798 the president invoked, and they all had tattoos.
Among those four men deported were a professional soccer player; a father whose son is a U.S. citizen; a political activist who protested the Maduro regime in Venezuela; and an asylum seeker.
238 Venezuelans on flights
Last week, President Donald Trump invoked the Alien Enemies Act, which allowed the rapid deportation of Venezuelan nationals 14 and older who are suspected members of the Tren de Aragua gang.
“If the President can label any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison, or any limit on how long they will remain there,” the American Civil Liberties Union, which originally filed the suit, wrote in recent court briefings.
The White House confirmed 238 Venezuelans were deported and flown to El Salvador, but is refusing to answer detailed questions about the timing of the March 15 flights, after a federal judge placed a temporary restraining order that same day on use of the wartime authority.
Thursday’s filings also included sworn statements from four attorneys who had clients initially on the deportation flights heading to the prison in El Salvador, but were removed before the plane left the U.S.
In separate accounts, the four men who disembarked the plane and questioned what was happening said they were told by an immigration official they had “won the lottery” because they were not being deported that day.
The eight exhibits by attorneys came just before a Friday hearing before U.S. District Court Judge James Emanuel Boasberg in the District of Columbia, who is pressing the government for more details on the timing of the two deportation flights.
Hard labor
The prison that the men were taken to, known as the Centro de Confinamiento del Terrorismo, or CECOT, has concerned human rights groups like the Human Rights Watch.
The president of El Salvador, Nayib Bukele, wrote on social media that the men deported from the U.S. to his country would perform hard labor for up to a year, potentially longer.
White House press secretary Karoline Leavitt said the U.S. government paid El Salvador $6 million to detain the men.
In a court filing with the ACLU, Juanita Goebertus, the director of the Americas Division of Human Rights Watch, said that “the Salvadoran government has described people held in CECOT as ‘terrorists,’ and has said that they ‘will never leave.’”
“Human Rights Watch is not aware of any detainees who have been released from that prison,” she said.
Tattoos of crowns, rosary, flowers
One of the men taken to CECOT is Jerce Reyes Barrios, a professional soccer player who marched in two political demonstrations protesting the regime of Venezuelan President Nicolás Maduro, his attorney, Linette Tobin, wrote.
Barrios came to the U.S. in 2024 using the CBP One app, a tool the Biden administration used to help migrants make appointments with asylum officers. The Trump administration shut down the app on the president’s first day in office and have repurposed the app as a self-deportation tool.
Tobin said that Barrios, who had no criminal record in the U.S. or Venezuela, applied for asylum and had a court hearing in April.
She said U.S. Immigration and Customs Enforcement accused Barrios of belonging to the Tren de Aragua gang because of his tattoos. He has a tattoo on his arm with a soccer ball and a crown on top, with a rosary.
“DHS alleges that this tattoo is proof of gang membership,” Tobin said. “In reality, he chose this tattoo, because it is similar to the logo for his favorite soccer team, Real Madrid.”
Another attorney, Austin Thierry, said his client, E.V., fled Venezuela after being tortured by officials for participating in a protest against the regime.
Since E.V. has been in ICE detention, “his partner and infant son have struggled to meet their expenses and maintain housing,” Thierry said, adding that his client’s son is a U.S. citizen.
“EV has various tattoos, such as tattoos of anime, flowers, and animals, that he chose to get for personal and artistic reasons,” Thierry said.
“E.V. also has a tattoo of a crown, which may be why ICE falsely accused him of gang membership. However, this crown is not related to Tren de Aragua but rather, a tribute to his grandmother whose date of death appears at the base of the crown.”
Asylum cases pending
Another immigration attorney, Katherine Kim, said her client, referred to as L.G., had a pending asylum case and that ICE alleged he was associated with Tren de Aragua.
She said L.G. denied being a member and has three tattoos.
“One is a rosary, the other is his partner’s name, and the third is a rose and a clock,” she said. “None of these tattoos are related to Tren de Aragua gang membership or membership in any other gang.”
Immigration attorney Osvaldo Caro-Cruz, said his client, JABV, fled Venezuela due to political persecution and applied for asylum through the CBP One app.
“His tattoos are a Rose, a Clock and a Crown with his son’s name on it,” Caro-Cruz wrote in a court filing. “These are common in Venezuela and bear no exclusive association with gang affiliation.”
Caro-Cruz said he was able to determine that JABV was deported to the prison in El Salvador because the president, Bukele, published a video and JABV’s brother recognized him.
Tattoo artist
Another filing was by Solanyer Michell Sarabia Gonzalez, who said he fears his younger brother was sent to El Salvador.
Both brothers have asylum cases pending. When they went to their ICE check-in appointment, the younger one, 19-year-old Anyelo Jose Sarabia, was asked about his hand tattoo by an immigration official and later detained.
Sabaria has no criminal record and is a tattoo artist.
Gonzalez said he can no longer find his brother on the ICE detainee locator.
Kelly O'Keefe Boettcher holds a photo of Brittany Doescher at a vigil near Taycheedah Correctional Institution in Fond du Lac on March 22, 2025 | Photo by Andrew Kennard/Wisconsin Examiner
At a vigil across the road from Taycheedah Correctional Institution in Fond du Lac, Wis., advocates sought to increase attention on the women’s prison.
The Wisconsin Examiner’s Criminal Justice Reporting Project shines a light on incarceration, law enforcement and criminal justice issues with support from the Public Welfare Foundation.
“There’s been a lot of publicity with what goes on in the men’s prisons in the last couple of years, but that is something that is not just within those prisons, it is at the women’s prisons too,” Juli Bliefnick, who was once incarcerated at Taycheedah, said at the vigil on Saturday.
The small group of advocates met in a neighborhood near the prison and walked up to the facility, carrying signs bearing photos of two women.
Wisconsin Watch and Wisconsin Public Radio published an article on March 11 that reported the deaths of Shawnee Reed, 36, on Feb. 23, and Brittany Doescher, 33, on March 6, following hospital stays. The women were incarcerated at Taycheedah Correctional.
Bliefnick is the operations coordinator for FREE, a nonprofit addressing the gender-specific issues of women’s incarceration and reentry to society. She spoke about getting “some visibility for these women and honor[ing] their memory” and showing support for women currently incarcerated at the facility.
The official causes of the deaths are still not public, according to the article. Family members said hospital staff linked the deaths to pneumonia. Following discussions with doctors, an unnamed family member of Doescher believes earlier treatment could have prevented her death. Family members said both women started mentioning health issues over the phone around a month before the article’s publication on March 11.
Pneumonia fatality
The obituary for Doescher says that she “suffered and died from complications from pneumonia left untreated.”
In a statement to Wisconsin Watch and WPR, Department of Corrections communications director Beth Hardtke said the agency was taking steps to prevent the spread of respiratory illnesses to staff and incarcerated people in a time of reportedly high numbers of respiratory illness cases in Wisconsin, the article said. She detailed actions taken by the department and said people incarcerated at Wisconsin prisons, including Taycheedah, recently received testing and treatment for Influenza A.
Another advocate at the vigil, Melissa Ludin, said she is a member of FREE’s board.
“And I think if anything, I think there’s things that really need to be looked into with that,” she said, referring to Doescher’s family saying the cause of her death was untreated pneumonia. “…Are there other women that are sick?”
Cellmate homicide
In July 2023, Cindy Schulz-Juedes, 68, died at Taycheedah Correctional. Taylor Sanchez, 29 and also incarcerated at Taycheedah, was charged with first-degree intentional homicide of her cellmate. A jury trial is scheduled for July and early August.
In early March, the Examiner sent a records request for any reports produced by the Fond du Lac Police Department’s investigation into Schulz-Juedes’s death. The department denied the request on the grounds that disclosure could interfere with an ongoing prosecution or investigation.
Attorney Steve Hurley with documents of the type Wisconsin prisons are shredding. | Photo by Erik Gunn/Wisconsin Examiner
The Office of the Wisconsin State Public Defender and other attorneys are expressing concerns over attorney-client confidentiality and the timely and accurate delivery of legal mail for clients incarcerated in state prisons.
The Wisconsin Examiner’s Criminal Justice Reporting Project shines a light on incarceration, law enforcement and criminal justice issues with support from the Public Welfare Foundation.
On Sept. 10, the Wisconsin Department of Corrections (DOC) adopted a new policy for external paperwork sent to prisons. The protocol calls for incarcerated residents to watch the copying of their legal mail and allows them to review the copies; then the original mail is shredded.
Mail covered under the policy includes letters from an attorney, law office, clerk or judge of any state or federal court, court staff or tribal court. It also covers correspondence with federal and state elected or appointed officials including the governor, Wisconsin legislators, the secretary of the DOC and others.
The process of opening and photocopying the mail, providing the copy to the incarcerated person and shredding the original mail is documented with the facility’s camera system, the DOC policy states.
The policy’s general guidelines allow staff to inspect legal documents “to the extent necessary to determine if the documents contain contraband or if the purpose is misrepresented.” If staff have reason to believe a letter is not a legal document “and the safety and security of the institution is implicated,” the policy allows them to read legal documents.
The DOC’s protocol has garnered criticism from the Wisconsin public defender’s office. Public defenders’ primary concerns are timely delivery of information to clients, the accuracy of the copying and protecting attorney-client confidentiality.
“Unfortunately, with DOC’s new mail policy we have experienced significant delays with mail delivery, compromised confidentiality, and in some cases legal documents have been lost,” said Deputy State Public Defender Katie York. “This has impacted our ability to develop trusting attorney/client relationships and has caused unnecessary delays for our clients and others impacted by the legal system. However, in our continuous efforts to provide the highest quality defense for our clients, we will keep doing everything we can to maintain communication with our clients.”
The Wisconsin American Civil Liberties Union (ACLU) has also raised concerns about how the DOC’s handling of legal mail is affecting incarcerated people and the legal process.
“Alarmingly, the DOC continues to introduce new restrictions that have made it increasingly difficult for people in DOC custody to receive legal mail and books,” Emma Shakeshaft, senior attorney for the ACLU of Wisconsin said in an October statement, “and we are very concerned about how these policy changes are negatively impacting those in custody. Legal mail is essential to incarcerated individuals’ ability to access the courts and to communicate confidentially with their legal counsel.”
Beth Hardtke, director of communications for the DOC, said the department was not aware of any recent concerns from the Office of the State Public Defender about the DOC’s legal mail policy, and that the DOC would follow up with them to learn more.
Hardtke said the public defenders’ office had input into the development of the policy, and that the policy was revised based on the office’s feedback before it went into effect in September 2024. The DOC is not aware of any significant delays regarding legal mail, she said.
She said the postal service delivers legal mail directly to facilities, “where it is promptly processed in front of the individual to whom the mail is addressed.”
“The policy also details a number of steps that are taken to protect the confidentiality of the process including having the process take place in front of cameras placed so that writing is illegible, special copiers just for this purpose and ensuring that the person in our care is part of the process,” Hardtke said.
Drug concerns
DOC’s goal with the legal mail policy was to prevent intoxicating substances from entering facilities through legal mail, Hardtke said.
In November2021, the DOC announced that it would start partnering with a company to photocopy the personal mail of all incarcerated adults in an attempt to keep drug-laden mail out of prisons. The department began giving residents photocopies of their mail instead of original letters.
In a 2021 press release about the new policy, the DOC said that despite its previous efforts, in September 2021 alone there were 182 drug incidents within Wisconsin prisons, with 16 people needing emergency medical treatment.
The department said it had seen an increase of drug incidents among incarcerated people. This included the use of synthetic cannabinoids, which can cause violent behavior or a need for emergency medical treatment, the department said. The DOC said paper and envelopes could be sprayed with or soaked in the drugs and sent into prisons through the mail.
In August 2022, the agency said it had seen a decrease in the total number of drug incidents at adult facilities between November 2021 and February 2022. The agency attributed the decrease to its new policy of photocopying mail. The DOC also said it saw a decrease in overdoses requiring transport to a medical facility.
After receiving inquiries about the department’s controversial ban on used books, the department sent data to reporters in late September. DOC staff reviewed contraband incident reports that facility staff had flagged as drug-related between 2019 and Sept. 18, 2024.
The department said some drug-related incidents recorded through a medical record or conduct report may not be reflected in their numbers. The DOC also said not all incident reports flagged as drug related turn out to actually be drug-related.
The DOC said legal mail tested positive in five incidents in 2021, and in 2022, there were 10 instances of material “purporting to be legal mail” that tested positive for drugs.
Six incidents in 2023 involved legal mail, the department said. The DOC said legal mail tested positive for drugs in at least seven incidents in 2024, as of Sept. 18.
When it comes to mail or donations that tested positive for drugs, the department said it is “often unable to say” whether they are from a legitimate entity, or from someone impersonating another person or organization.
In an email to the nonprofit Wisconsin Books to Prisoners in August, then-Administrator of the Division of Adult Institutions Sarah Cooper spoke about impersonation. She said “bad actors” impersonated agencies to send drugs into prisons.
“To provide some examples, there have been many instances of drugs coming in via mail (and publications/books) which appear to be sent from the Child Support Agency, the IRS, the State Public Defender’s Office, the Department of Justice and individual attorneys,” Cooper said.
In the August email, Cooper said the DOC had had to “implement a whole new process” for handling mail from the entities she mentioned.
The number of drug incidents involving legal mail has fallen to zero, according to a review of contraband incident reports that facility staff flagged as drug-related, Hardtke said. She said between Sept. 19 and Feb. 28, there were no incidents documented in those reports of legal mail testing positive for intoxicants.
She said these records may not include all incidents, since some incidents may be documented in conduct reports, other types of incident reports or medical records.
“The most important thing to know about the legal mail policy is that it works,” Hardtke said.
But York said she also knows there have been instances of false positive tests.
“I know it has happened because I’ve talked to both staff and private bar attorneys where the institution has sent back materials because they tested positive,” York said. Transcripts that were not drug-laced have been returned after positive tests, she said. She could not provide a number of such incidents and said she also believed some documents that were confiscated after positive tests were not sent back.
Hardtke said the DOC uses the IONSCAN 600 testing technology to test books, packages and other materials coming into DOC facilities. She said the technology was chosen in consultation with the Wisconsin Department of Justice and the Wisconsin State Crime Laboratories “in part because its results have held up to court scrutiny.”
Steve Hurley, a defense attorney at Hurley Burish, S.C. in Madison, told the Examiner about a case a few years ago in which his firm represented a lawyer who was accused of sending drugs to a client.
He said their investigation used the test used by the DOC and got a false positive, and that the department relied on a presumptive test that was not intended to give a conclusive result.
This test was not the IONSCAN 600. The DOC did not say whether it currently uses other tests as well as the IONSCAN 600.
“They didn’t charge him criminally because I think they knew that they had misused the [drug] test,” Hurley said. “So when I called them on it, eventually, they just dropped the whole thing and reinstated his ability to communicate with his client.”
Attorneys suggest creating a verification method for legal mail
Shakeshaft said attorneys attempting to communicate with their clients are not the source of drugs in prison. She thinks there should be an alternative method of getting legal mail to clients without having all the documents copied and the originals shredded.
“To the extent that third parties are attempting to disguise contraband as legal mail, there’s a lot of less restrictive ways to address that, to ensure that legal mail is coming from licensed attorneys… [Methods that] are not nearly as much of a threat to attorney-client confidential communications,” she said.
York said her office asked about creating a process that would certify the mail was from the assigned attorney and not from an impersonator.
“We asked if there was some sort of system, if it was like, some sort of changing numbering system, or something that we could put on the envelopes that would ensure that they knew that it was coming from our office,” she said.
York said her office also made an offer to reach out to a facility beforehand when they’re sending a client their file. The public defender’s office would let them know how many boxes they would be sending with a client file, so the facility would know in advance that the documents were coming from their office. She said the offer was not accepted.
York said her office used to receive calls seeking to verify that her office had sent mail to a resident. She didn’t think this was consistent across all facilities.
“They would call our office and ask, ‘Did you send mail to this person?’ when they got letters,” said York. “I used to get those calls when I was the appellate division director. So that was another way that they used to try to kind of validate the fact that it came from an attorney.”
Confidentiality concerns
Hurley said that as a defense lawyer, it’s his job to not trust the government when it comes to his clients. He believes his clients should receive their legal mail unopened.
“The minute you open a lawyer’s mail, somebody is going to look at it,” Hurley said. “I don’t care what they say about their policies, somebody’s going to look at it. And you can’t do that.”
If others know what someone is convicted of, it could lead to a more difficult time in prison, Hurley said. He also said information in an incarcerated person’s legal mail isn’t necessarily about their criminal record.
“If you were getting divorced, do you want your neighbor to know what you’re arguing with your spouse over about what the extent of your property is?” Hurley said. “No, and you don’t want a guard to know that either.”
Nicole Masnica, an attorney with Gimbel, Reilly, Guerin & Brown LLP in Milwaukee, said prison staff reviewing privileged communications and legal mail from counsel creates a concern about the safety and security of incarcerated people in the DOC.
Legal correspondence and materials “may very well contain” information detailing a person’s cooperation with authorities against other incarcerated people “and even sometimes staff employed by the Department of Corrections,” she said in a statement emailed to the Examiner.
“I have represented individuals who have expressed concerns about confidential information from legal correspondence getting into the wrong hands at the prisons, and policies like those currently in place with the DOC that permit the reviewing of confidential information by DOC staff only amplifies those risks to individuals assisting law enforcement investigations,” Masnica said.
Shakeshaft said there are opportunities during the copying and shredding of legal mail for someone to view the documents. She also raised the question of how the process would be filmed without the camera viewing information in the legal mail.
“There’s a number of different parts of the policy where confidentiality is threatened overall,” she said.
Attorney Lonnie Story sent the Examiner a conduct report from when an incarcerated man, Justin Welch, was written up by a DOC staff member in February 2024. The report indicates a staff member read a letter from Welch that was “addressed to Story Law Firm Attorney Lonnie Story.”
According to the report, in the letter, Welch referenced a recent assault he was involved in with another person. Welch said that he was going to be placed by this person and “will have no choice but to fight him again. This is what the WCI does this time I will hurt him.” The staff member wrote the conduct report, saying Welch was making direct physical threats to the other person.
Story said he contacted Department of Justice attorneys, who called the warden. Story sent the Examiner a letter from the warden on which Welch was copied, dated March 25, 2024. The letter said the warden had initiated a review of the incident, and the hearing officer’s decision and the punishment of 30 days in restrictive housing were reversed.
Welch sent the Examiner a complaint he made to the DOC about a prison denying three of his emails, preventing them from reaching the intended recipients. (Electronic correspondence is not treated as legal mail under DOC policy.)
Two emails were intended for a reporter, while the third was sent to Story. According to Welch’s complaint, a staff member told him that emails were not for legal communication and an attorney call should be set up instead. Welch’s complaint was successful, leading to a ruling that his emails should not have been denied.
Devin Skrzypchak, a resident of Oshkosh Correctional Facility, said he has concerns that the prison staff have had access to his legal mail for up to three days while the prison was setting up a time for the copying and shredding when he could be present. He has concerns that his legal mail could have been read during that wait time.
Not all legal mail involves physical documents, according to Masnica. If there are large files, it’s cheaper to send a hard drive or USB. In one case, Masnica said she sent documents related to potential jurors and received an email from the prison.
The person from the prison who contacted Masnica didn’t necessarily think the documents were related to litigation, she said. To her, it was clear that the prison had reviewed the mail in detail.
“They had made remarks that it was not just the jurors in the case, but all jurors potentially that were going to be called that week, or that month,” Masnica said.
Masnica said she complained and was sent a policy. DOC policy says that when a facility receives new digitally formatted legal material, it shall assign staff to review the content with the incarcerated person present to make sure it is “legal in nature.”
The policy states that “if any file is found to contain contraband, the data storage device may be subject to disposal” in accordance with the DOC’s contraband policy after consultation with the Office of Legal Counsel.
Timeliness concerns
“We’ve heard of attorneys having to push back court deadlines and delays because they can’t continue that communication [with clients],” said Shakeshaft. “They can’t get the legal documents to clients in time, or clients aren’t getting the correct legal documents.”
The Examiner asked York about specific situations that make it critical for the incarcerated person to have the legal mail for the case to proceed in court.
“There is not a super clean answer to this, but there are some situations, for example, we need clients to sign documents,” said York. “One example of that is notice of intent to appeal in a termination of parental rights case; we have to have a wet signature from the client on the notice before we file it, and it’s a pretty tight turnaround. It’s 30 days.”
York said there’s also a problem when clients don’t accept their mail due to the policy of copying and shredding. This leaves the attorney with the option of meeting in person to get a signature on a form, which can be time consuming.
Lost in the mail
Masnica recalled her firm having to send mail multiple times because a client didn’t receive it.
“If we’re sending something to a client on the street who is living in their home, we never really have issues,” Masnica said.
Story said he’s had an issue with not receiving mail that a client said they sent to him.
“Most disturbing is when my clients have part of their case record from their legal materials disappear,” Story said. “Their file doesn’t follow them to the next institution, or part of it is mailed to me and not the whole of it.”
Dorin Ferguson, who is incarcerated at the Wisconsin Secure Program Facility in Boscobel, said he has sent mail to Story that didn’t arrive, including mail that was returned to Ferguson.
DOC policy allows the resident to check the copied legal documents and request two rescans. York said sending large files poses a risk of miscopying.
A man convicted of sexual assault was freed after an office led by Susan Crawford missed a court deadline.
In an ad, Brad Schimel, the conservative candidate in the April 1 Wisconsin Supreme Court election, suggested that Crawford, the liberal candidate, was personally responsible.
In October 1999, a Waukesha County jury convicted Thomas Gogin of second-degree sexual assault. Gogin contended the sex was consensual. He was sentenced to seven years in prison.
In July 2001, a Waukesha-based state appeals court ordered a new trial. It ruled Gogin’s attorney made errors that could have affected the verdict.
An attorney in the Wisconsin Justice Department’s appeals unit, led by Crawford, missed the deadline to appeal to the state Supreme Court.
Gogin, who served about two years in prison, was not retried. Instead the Waukesha County district attorney offered a plea deal. Gogin pleaded no contest to third-degree sexual assault and was sentenced to five years of probation.
This fact brief is responsive to conversations such as this one.
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