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Sheriff Marlin Gusman is threatening to take the city to court unless it pays him 28  percent more money than last year to house New Orleans inmates.

The move likely heralds yet another round of legal wrangling between the city and the sheriff’s office over funding for the jail, which has been ongoing since the late 1960s — prompting criminal justice reform advocates to suggest changing the way the city pays for its jail services.

The city now pays Gusman $22.39 per inmate per day. That’s less than the state and federal prison systems pay him, with daily rates of $26.39 and $43 respectively.

Gusman says the rising cost of housing the city’s inmates means he needs $27 per inmate per day from the city to provide constitutional conditions in his jail. That’s an annual increase of $4.8 million, based on his projection of  2,800 city inmates next year – up from 2,308 in 2009 and 2,500 projected this year.  Gusman is also seeking $3.1 million more  for court and medical services.

All told, Gusman is seeking $7.9 million more than last year’s budget of $28.4 million, an increase of 28 percent. The Sheriff’s Office hasn’t seen a significant budget increase from the city since 2003.

To the sheriff, the math is simple:

“In 2005, OPSO purchased a year’s worth of apricot halves for $201,725, while in 2010, a year’s worth of apricot halves cost $213,022,” wrote Gusman, in a letter to Mayor Mitch Landrieu on July 29, illustrating rising cost issues. “Similar price rises occurred in dairy products, meat, cheese, and even seasonings such as garlic powder.”

Medicine, material, service and power costs have all risen sharply since Hurricane Katrina, the sheriff wrote.

It may be difficult for the city to find an extra $7.9 million for the sheriff’s office when it is already strapped for cash — Mayor Mitch Landrieu is seeking to close a $79 million hole by the end of this year.

“I think everybody believes that the Sheriff’s Office is woefully under-funded, but the city is woefully under-funded,” said Dane Ciolino, a legal expert at Loyola University’s Law School.

Still, Gusman says that’s not his problem.

“Unless the City of New Orleans agrees to an increase in per diem and other payments, we will be forced to seek a legal remedy,” wrote Gusman, in a July 30 letter to the city’s chief administrative officer, Andy Kopplin, as part of his 2011 budget request.

It wouldn’t be the first time Gusman has taken the city to court over this issue. Indeed, the Sheriff’s Office has done it dozens of times over the years.

At the root of the ongoing dispute is that no other major city in the country pays its sheriffs for jail space with a per diem system.

New Orleans’ daily rate originates from a lawsuit filed by the National Prison Project of the American Civil Liberties Union in 1969, on behalf of all prisoners at the Orleans Parish Prison, asking that the city pay the Sheriff’s Office sufficient money to maintain constitutional conditions.

An order establishing the daily rate was added in 1989 and has been amended several times since then, most recently in 2003, to the current rate of $22.39 per day.

The ACLU withdrew its name from the lawsuit last year on the grounds that its original intent — to improve jail conditions — had ultimately been turned on its head by the per diem system.

“The only incentive a per diem system provides is to have more people in jail,” said Michael Jacobson, director of the Vera Institute of Justice in New York. “Because the more inmates you have, the more money you have.”

Nevertheless, the funding orders remain attached to the 1969 suit, even without a plaintiff. And the sheriff’s threat to take the city to court to amend the per diem again should come as no surprise, legal experts said.

“It’s essentially a demand letter laying the groundwork for yet another round legal squabble,” Ciolino said. “The problem is not that people dispute or doubt the sheriff’s office needs more, the problem really is just really finding a source for funds.”

Now, justice reform advocates say the time has come to change the way the city pays the sheriff for jail services. For example, research suggests that “over-punishing” less dangerous criminals, who wouldn’t be in jail elsewhere, turns them into more serious criminals by removing them from society and depriving them of employment and social ties, Jacobson said.

“So [in a per diem system], you’re effectively spending money to buy yourself a public safety problem,” Jacobson said. “And then you’re on this treadmill, where no matter what you have, you’re never going to have enough money to run a safe jail.

“I would argue that in New Orleans, you need a smaller jail, but with more money,” Jacobson continued. “The sheriff may well need $32 a day, but it shouldn’t be on a per diem. It should be based on who’s in jail, and what do those people need?”

Jon Wool, director of the Vera Institute’s New Orleans office, said that it’s up to the city as much as the sheriff to look at ending the per diem funding structure.

The sheriff’s demand comes as Landrieu convenes a Criminal Justice Working Group to examine the size of a new jail, and as Gusman spends $11 million in FEMA money on a temporary jail to house 400 inmates. The sheriff also was threatened with legal action by the Department of Justice in September 2009, if he didn’t take action to improve conditions inside his jails to meet constitutional standards.

The sheriff told The Lens in a recent interview that he has met the Department of Justice conditions, but his office has yet to turn over documentation to prove it.

Advocates for a smaller jail say the sheriff needs to be more transparent about why he has so many inmates in his jail, before the city agrees to write him a larger check for each of those inmates. The sheriff has capacity for about 3,552 inmates, and had 3,170 inmates on September 10, according to statistics provided by his office.

“The problem is he hasn’t explained to anybody why he has as many people in there he has, why he needs to have the number of beds he has,” said Marjorie Esman, executive director of the Louisiana ACLU. “Until he’s provided answers to those questions, the City Council shouldn’t just give the amount, blank dollar he wants.  He needs to explain what he really needs and why he needs it.”

Gusman did not respond to a request for comment.

The city is saying little about the matter.

“We have received the Sheriff’s request and are considering it as we work to develop the 2011 budget,” Landrieu spokesman Ryan Berni said in a written response to an interview request on this story by The Lens and our partners at Fox8 News.