The city’s reluctance to provide Sheriff Marlin Gusman with a financial bailout continues to stymie movement toward reforming Orleans Parish Prison under terms of a federal consent decree — despite fresh reports of violence and unconstitutional conditions at Gusman’s sprawling jail complex.
At the heart of the impasse: The Landrieu administration refuses to give Gusman what it calls a “blank check” to fund the jails through the end of fiscal 2012.
In court papers filed Oct. 12, lawyers for the Southern Poverty Law Center and the U.S. Department of Justice described a proposed settlement that “contains comprehensive provisions on protection from harm from physical and sexual assaults, suicide prevention, mental health care, medical care, sanitation, improved non-English-language proficiency,” and other improvements to “policies, procedures and monitoring measures.”
The only sticking point, they said, was the “interim amount of funding that the City should provide the Sheriff to address currently deficient conditions.”
Correction: The original version of this story misattributed this statement to the judge overseeing the case.
To arbitrate the funding dispute, U.S. District Court Judge Lance Africk said plaintiffs have agreed with his decision to appoint retired Criminal Court Judge Terry Alarcon as a special master.
The city is not only wary of opening its checkbook to Gusman, it denies it has had any role in creating the conditions the sheriff is under orders to remedy.
“We have yet to receive any clear evidence or justification that the unconstitutional practices and conditions at the jail have been caused by a lack of funding from the City,” mayoral spokesman Ryan Berni said Monday, “and that any additional funding, both regardless of the amount or time period in which it is received, would resolve the underlying issues.”
The extent of the rift between the sheriff and the city became clear Wednesday when city attorneys filed a position statement that scoffed at Gusman’s attempt to secure about $38 million in “interim” funding, about $14.5 million more than the city’s current allocation. City attorneys acknowledge in the filing that the city is obligated to pay some expenses, including the cost of housing prisoners, medical expenses, court services and health insurance.
But Gusman “cannot mismanage the funds paid by the City, generate additional funds, then use those additional funds he may generate to purchase items that are not essential to the operation of the jail, while still alleging that he does not have sufficient funds to operate the jail.”
The city warns that “for every million dollars requested, the City will need to furlough at least 24 employees between now and the end of the year,” including “critical personnel such as police officers and firefighters.” By that measure, about 400 city employees would be furloughed; the New Orleans Police Department now has 1,652 employees, according to an October audit by The PFM Group.
City attorneys argue for a full “forensic audit” of Gusman’s books to ascertain his spending priorities rather than a having a special master determine how much they should pay. But they didn’t object to the appointment of Alarcon as special master.
The city pays for its portion of jail services based on a prisoner per-diem fee. For prisoners locked up on local charges, the daily rate paid by the city to Gusman is $22.39. The city budgeted Gusman about $22 million, based on prisoner projections for 2012.
Gusman’s total budget for 2012 is about $100 million.
The sheriff provided spreadsheets during mid-August budget hearings before the City Council’s Criminal Justice Committee that showed he was on pace to run a $20 million deficit this year—an amount roughly equivalent to his entire allocation for city inmates.
And the jails are not the only big-ticket consent decree the city is facing. The Landrieu administration is still working out details of proposed reforms of the New Orleans Police Department, a federally-supervised process that the mayor’s office said will cost $11 million a year over the next 4 or 5 years.
Correction: The original version of this story incorrectly stated the time period covered by the cost estimate.
The impasse over interim funding for the sheriff comes as the mayor works on a 2013 budget for Orleans Parish Prison.
That budget is tied up in separate negotiations between the city and Gusman over ending the per-diem approach to funding. Ironically, the per-diem approach is rooted in an earlier consent decree dating to the 1960s that also sought to bring the jails into compliance with the Constitution. The funding mechanism was an attempt to keep the prison population in check and to assure a proper inmate-to-guard ratio.
Gusman has provided line-item budgets to the city in past years. Those budget requests were often in the $40-$60 million range, two to three times the amount it provided under the per-diem formula.
The sheriff has not made public his proposed line-item budget for 2013.
The city is “largely committed to moving away from the current per-diem structure,” Berni said earlier this year. “The per diem is not used in most places and has sometimes been unpredictable as it relates to the City’s budget,” he added.
Critics of per-diem budgeting formulas argue that they create an incentive to lock up as many people as possible, for as long as possible.
City officials, including Councilwoman Susan Guidry, chair of the council’s Criminal Justice Committee, have been meeting throughout the year to determine if the sheriff’s budget could be for a set amount.
Guidry is optimistic that the budget will eventually be drafted on a line-item basis. “The only way it wouldn’t happen,” she said, “is if the legal issues in litigation over the consent decree kept it from happening.”
A series of emails and other correspondence obtained by The Lens indicates that budget negotiations are indeed tied up in the wrangling over the consent decree.
On April 2, as city officials planned to overhaul the sheriff’s budget for 2013, Gusman was sued by the Southern Poverty Law Center, a nonprofit watchdog group that alleged unconstitutional conditions prevailed in Orleans jails.
Three weeks later, the federal Department of Justice sent Gusman a letter that blasted him for failing to upgrade the complex, despite repeated orders to do so dating to 2009.
Three days later, on April 26, Gusman wrote Landrieu’s chief administrative officer, Andy Kopplin, declaring that “additional funding will be required from the City in order for the Sheriff’s Department to maintain its operations.”
Gusman noted that closing of the prison building called the House of Detention had resulted in the transfer of some 500 state prisoners out of Orleans Parish Prison and, his letter said, a “loss of significant funding to the Sheriff’s office.”
In subsequent mid-year budget hearings, Gusman said he had implemented staff furloughs and other cost-saving measures to try to close the $20 million gap.
Understaffing at Orleans Parish Prison has been a consistent theme in complaints and lawsuits against the sheriff’s department. But Guidry repeated Berni’s assertion that neither the city nor the City Council is responsible for any unconstitutional conditions that result from understaffing.
Late last month, the Department of Justice joined the Southern Poverty Law Center’s lawsuit in a bid to reach a settlement with the sheriff and begin prison reforms under the proposed consent decree. In joining the suit, the federal government was able to secure the legal standing necessary to pursue and eventually implement such a decree.
Negotiations were proceeding apace, until last week when the city and Gusman hit their impasse over interim financing.
Judge Africk responded by saying he would assign Alarcon as special master to arbitrate the matter.
The Landrieu administration has drawn a line in the sand. “The city will not write a blank check for this consent decree without justification for additional expenses and clear benchmarks and outcomes for the additional taxpayer dollars,” Berni said.
Meanwhile, the jailhouse chaos persists. The Southern Poverty Law Center’s class-action lawsuit against Gusman was based on declarations from about two dozen inmates who cited incidents of violence and abuse. The Oct. 12 court filing included additional declarations, similar in nature.
The latest filings depict a prison rife with prisoner-on-prisoner violence and staffed by guards indifferent to inmate safety and mental health.
Among them is a John Doe complaint from an inmate held in the prison’s Conchetta facility on simple burglary charges. The inmate said he spent the first two weeks in jail detoxing from drugs:
“They put me on a regular tier in Old Parish Prison even though I have a low charge and a low bond,” the inmate declares. “Guys told me that I had to get off the tier because I didn’t have high enough charges. I didn’t know what they meant, so I just went to my cell. I figured out what they meant, though. Some of them raped me at knifepoint and then I ran off the tier.”
The inmate said that, despite death threats from his attackers, he reported the incident three times to deputies, administrators and the Special Operations Division, but got no medical treatment, not even a test for sexually transmitted disease.
“I am scared, lonely, and afraid for my life,” the inmate stated.
A status conference is scheduled for Thursday in federal court.
This story was updated with additional information from the city’s court filing.
Correction: This story originally stated that the city’s filing referred to Gusman’s request for about $38 million in additional funding, but that is the total amount of Gusman’s interim request. His request is about $14.5 million more than the city’s current allocation of $23 million. As a result of this error, the story also overestimated the extent of the furloughs the city says would result from the increased funding.
