U.S. District Judge Lance Africk has scheduled a Tuesday morning meeting between parties to the class-action lawsuit at the center of efforts to create a safer and more humane Orleans Parish jail.
The 7:30 a.m. status conference in Africk’s chambers is the latest development in a months-long negotiation to create a federal consent decree.
It’s a complicated story, with several different players and threads: prison violence, the city’s funding of the jail complex, and a financing formula rooted in a federal court case from the 1960s.
As the city of New Orleans and Orleans Parish Sheriff Marlin Gusman argue over how much the solution will cost, the violence goes on at the sprawling jail compound along I-10. In October, the Southern Poverty Law Center added a raft of accusations to its lawsuit against prison officials. Rapes, beatings, indifferent (if not brutal) guards, prisoner-on-prisoner violence: This is your Orleans Parish jail.
Here’s a look at the twists and turns in the struggle to bring justice to the Orleans Parish jails.
Who are the players in the proposed consent decree over the Orleans Parish jail complex?
The consent decree negotiations are tied in with a class-action lawsuit filed in April by the Southern Poverty Law Center. The defendants in that case are Gusman and numerous staffers at the Orleans Parish Sheriff’s Office. (All have been sued in their official capacity only.) The plaintiffs, about two dozen present and former inmates, allege various degrees of brutality and abuse at the hands of prisoners and guards.
In September, the U.S Department of Justice intervened as a plaintiff in the suit. In October, at Gusman’s request, the city of New Orleans was added as a third-party defendant.
What would the consent decree do?
The consent decree would be a legally binding agreement between the Justice Department, the Sheriff’s Office, the city of New Orleans and the plaintiffs represented by the Southern Poverty Law Center.
In a court filing on Oct. 12, the plaintiffs noted that the proposed agreement had 12 sections, with “comprehensive provisions on protection from harm from physical and sexual assaults, suicide prevention, mental health care, medical care, sanitation, training, quality assurance/performance improvement, fire and environmental hazard safety, limited English proficiency services, and improved policies, procedures, and monitoring measures.”
The parties to the lawsuit were supposed to file a proposed interim consent decree by Oct. 15, but that didn’t happen.
Instead, the city and Gusman squared off over how much — if anything — the city would pay to resolve the issues in the consent decree. (The city provides a third of the Orleans Parish Sheriff’s Office budget, though Gusman answers to the voters.)
When did the Department of Justice begin criticizing Gusman for his oversight of the Orleans Parish jail complex?
In September 2009, the Justice Department sent Gusman a letter condemning conditions at the jail and demanding that he end prisoner-on-prisoner rapes and other violence. The Justice Department based its findings on two visits to the jail in 2008; the report was conducted under the auspices of the 1997 Civil Rights of Institutionalized Persons Act.
Although the Justice Department commended Gusman for his work in rebuilding the jails after Katrina, it concluded that “inmates confined at OPP are not adequately protected from harm, including physical harm from excessive use of force by staff and inmate-on-inmate violence.”
The federal agency also described inadequate mental-health care for inmates, poor suicide-prevention efforts, improper grouping of violent and nonviolent inmates, and terrible environmental and sanitary conditions, among other issues.
A week after the Southern Poverty Law Center filed its lawsuit, the Justice Department followed up with a second letter to Gusman. Where the department had been evenhanded toward Gusman in 2009, it now excoriated him for failing even to take basic steps, identified in the earlier letter, to bring the jails into compliance with the Constitution.
The Justice Department reminded Gusman that it had sent a draft consent decree for his consideration in November 2011. “Since that time, you have failed to seriously negotiate.”
According to the Justice Department, Gusman didn’t respond to that draft consent decree until March. “In the interim, OPP prisoners have needlessly suffered and staff members’ safety has been at risk.”
How did this consent decree come to be a part of the Southern Poverty Law Center lawsuit?
In that April letter, the Justice Department warned Gusman: “If you fail to immediately negotiate in good faith, we will be forced to consider whether litigation is appropriate.”
The Department of Justice joined the Southern Poverty Law Center lawsuit in September in order to secure the legal standing necessary to pursue and eventually implement the consent decree.
By then, Gusman was talking to officials at the Justice Department and said he supported its entry into the lawsuit. This was a turnabout from the defensiveness and delays that had characterized Gusman’s initial responses to the Justice Department and the Southern Poverty Law Center’s lawsuit.
But two months later, Gusman asked that the feds be removed from the lawsuit. The judge hasn’t ruled on that request.
The city, however did respond in a filing, recapitulating its position that unconstitutional conditions at the jail were Gusman’s problem, and his alone.
Why is the city of New Orleans involved in this lawsuit at all?
Unlike the negotiations that led to a sweeping consent decree governing the New Orleans Police Department, the city was a latecomer to these negotiations.
Civil rights activists have argued that the city shares responsibility for unconstitutional conditions at the jail because it has failed to fund the operation at a level that would guarantee proper treatment of prisoners. The city rejects this line of reasoning.
Gusman has demanded that the city put up $14 million so he can immediately begin implementing portions of the proposed consent decree – in particular, those aspects dealing with training and staffing problems. He’s complained about underfunding before, including in an April letter to the city in which he said he was running out of money.
The city has balked at his $14 million demand, telling Gusman it wouldn’t write him a “blank check” when he hadn’t been particularly efficient, let alone transparent, with the money it has already provided.
In an Oct. 12 court filing, the plaintiffs noted that all the substantive issues in the consent decree had been settled. The only hangup, they wrote, was Gusman’s request for $14 million in interim funding to begin implementing the agreement.
Last month, Africk appointed a former state judge to resolve the issue.
In Gusman’s request to have the Department of Justice removed from the case, he offered defenses that appear to tie whatever unconstitutional conditions do exist at the jail with the city’s failure to adequately fund it.
The city responded three days later with a point-by-point rebuttal, encapsulated in its charge that “the Sheriff failed to properly utilize adequate funding that has been and is currently provided by the City for operating the jail.” The city contended that Gusman had enough staff, but he wasn’t deploying them properly or training them adequately.
How is the consent decree tied into budgeting for the jail?
The Orleans Parish jail system has long been known as one of the most violent in the United States. Johnny Cash even wrote a song, “Orleans Parish Prison,” about the notorious lockup in the early ’70s, when the federal government first tried to bring the jail into constitutional compliance.
A 1969 class-action lawsuit, Hamilton v, Schiro, charged that then-Sheriff Charles Foti was running the jails in an unconstitutional manner and demanded a cap on the prisoner population and an appropriate guard-to-inmate ratio. The case was decided in 1970.
The court ruled that the $1.25 “per diem” in force at the time, which allocated funding per prisoner, per day, was inadequate. The rate was increased several times in the intervening years, but the last per-diem adjustment was in March 2003, when U.S. District Judge Jay Zainey set the daily rate at $22.39 per prisoner.
That’s where the rate stands today.
Critics of the per-diem budget have argued that it creates an incentive to keep as many people locked up for as long as possible. They want it ushered out in favor of a line-item budget that would not be based on an average daily prisoner count.
Gusman, the City Council and the Landrieu administration have all pledged their support of ending per-prisoner funding, but the city used the formula again for its proposed $22.4 million 2013 budget for Gusman.
Zainey needs to sign off on any expiration of that funding system because he’s the last judge to approve a rate hike and because the per-prisoner rate is itself embedded in the original Hamilton consent decree.
Andy Kopplin, the city’s chief administrative officer, told the City Council during budget hearings that it was up to Gusman and Zainey to undo the per-diem formula and it wasn’t too late to adopt a line-item budget for 2013.
But time is working against that possibility.
Under its charter, the City Council has to approve a balanced budget by Dec. 1. It took two years to put together a consent decree for the New Orleans Police Department.
Earlier this year, during a City Council discussion of jail funding, Councilwoman Jackie Clarkson presented a pleasing vision of her, Councilwoman Susan Guidry and city Budget Director Cary Grant holding hands and skipping to Zainey’s court to undo the Hamilton decree.
Don’t count on much hand-holding in Africk’s court Tuesday morning as the city and Gusman battle over who will pay what to bring the jail up to standards — and as the abuses continue.