Willie Lee, 40, died last month in Orleans Parish Prison, probably the worst jail in the country. He was awaiting trial on charges of breaking into neighbors’ apartments and causing property damage. He got into a fight at the jail, collapsed 10 minutes after it was broken up, and was pronounced dead two hours later.
The coroner’s report was uninformative in what it listed as the cause of death: “cardiac arrest.” Everyone dies when his heart stops beating; the question is what caused it to stop. Silence from the jail so far on that score.
The prison is too large; it’s understaffed, and it’s filthy. Medical and psychiatric care is terrible and prisoners live in fear of being beaten or raped. In 2012 there were 600 ambulance runs to the emergency room, with far more than half of them related to violence. The rate is up so far in 2014. A comparable jail in Memphis had seven ER runs associated with violence in a year.
In 2013 federal Judge Lance Africk found conditions in Orleans Parish Prison unconstitutional and wrote that they left “an indelible stain on the community.” He now has jurisdiction over the jail as a result of a federal consent decree, an agreement between the sheriff, the prisoners who sued, and the U.S. Department of Justice. It requires wide-ranging reforms.
Federal law does not permit the judge to close the jail, or even transfer prisoners out of it. And yet conditions are so bad it’s likely to be years before reforms can be completed. In the meantime, the prisoners must try to survive in conditions that the federal court has already declared unconstitutional.
This dilemma stems from the federal Prison Litigation Reform Act, a federal statute passed in 1996 by a Republican Congress hostile to social reform through litigation. No matter how much a federal judge wants to clean up a local jail, the statute drastically limits the tools available for doing so.
This was evident in the hearing on the sheriff’s lack of compliance with the consent decree that Africk gaveled to order three days before Lee’s death. The tension between what needs to be done and the limited power of the court surfaced repeatedly in exchanges between Africk, a cautious jurist, and Harry Rosenberg, the quirky private lawyer who represents the City of New Orleans in its fight with the city’s jailer, Sheriff Marlin Gusman, over how to manage and finance the reforms.
If Rosenberg, a former U.S. attorney, were a baseball player, he would steal second base by limping to first after drawing a walk, thus tricking you into believing he couldn’t run. His act begins with his hairdo. Imagine Larry of the “Three Stooges” grabbing the globe of a Van de Graaff generator and static electricity sending foot-long tresses straight back into the air from his receding hairline.
Rosenberg is constantly apologizing to the witnesses, the judge, and opposing counsel for the possibility he is getting things wrong. He frequently misstates the testimony of witnesses or remarks by opposing counsel. The garbles seem inadvertent, until you notice that they invariably benefit his client’s position. His questions are awkwardly constructed, and frequently require rephrasing. He thinks nothing of immediately repeating a question the judge has just told him is irrelevant — and in such a pathetic tone of voice that the witness goes ahead and answers it anyway.
Africk, for his part, looks like, well, like a federal judge. A handsome man, with white hair perfectly parted and combed to the side, in his black robe he personifies the Law. He has a complete grasp of the facts and proceedings in the case. As lawyers question witnesses, frequently quarreling about what was said or done at previous hearings, the judge calmly pages through his loose-leaf briefing book, or scans documents on his computer, keeping everything on course.
With one eye on the possibility of an appeal, he frequently adds a question or two at the end of the examination of a witness, to make sure the record contains exactly the testimony needed to support any rulings the judge might issue. He never raises his voice and doesn’t have to – his authority in the courtroom is unquestioned.
The contrast in style between Rosenberg and Africk overlies more substantive differences in their approach to the problems at the jail. Rosenberg’s woolliness is merely a pose, which gives him the room to raise issues that the judge can’t do anything about and really doesn’t want on the record. His arguments are dictated by the political obligations and opportunities he has as the city’s lawyer. The judge, on the other hand, is seriously constrained by the Prison Litigation Reform Act, and its provision that a federal court can respond to specific violations of inmate rights only with measures that are “narrowly drawn” and the “ least intrusive.”
The act specifically provides that a court may not order the release of prisoners unless overcrowding is the cause of constitutional violations and, even then, not until less severe remedies have been tried and have failed.
The evidence objectively supports the conclusion that the jail should be closed, but though it is seriously understaffed, the one problem it does not have is overcrowding. Gusman’s predecessor, ex-Sheriff Charles Foti, expanded the physical plant to house as many as 7,000 prisoners; it now has approximately 2,000, but even after extensive damage due to Hurricane Katrina, there’s room for another several hundred. Absent overcrowding, federal courts do not have the power to order prisoners released.
Unfortunately, the evidence at the hearing proved that the prison cannot be made constitutional within any reasonable period of time using the tools available to the court under the Prison Litigation Reform Act.
The jail lacks written policies and procedures for all significant operations. Some tiers in the jail have no deputies on duty, and all parties agree that substantial numbers of new deputies must be hired. That is a bigger problem than one might think, because the Sheriff’s Office has no infrastructure for hiring, with only one full-time and one part-time person available. The court-appointed monitor testified it takes 100 applications to yield one qualified deputy. There is no way the current staff can recruit, review, investigate, and interview applicants on that scale.
Moreover, virtually all current staff require retraining. Add horrible sanitation, grossly inadequate medical and mental health care, and an astronomical level of violence, and it likely will be years before the jail is constitutional.
Rosenberg repeatedly brought up political measures that go beyond what the judge can order. His motive in doing so may have been in part to shift blame for the problem to Gusman. But many of the ideas had merit:
- The Sheriff’s Office and the City of New Orleans could consolidate their personnel departments, providing the jail with the infrastructure it needs to hire more deputies.
- They could hire a private firm to replace the sheriff’s deputies who currently provide security at City Hall, freeing them up to return to the jail.
- The Sheriff could hand over all state prisoners to Louisiana’s Department of Corrections, a move that Rosenberg estimates would reduce the jail population by as many as 350 prisoners, increasing the deputy-to-prisoner ratio and making the jail safer.
- The police could give more people summonses to appear in court, instead of arresting them, and local judges could release more arrestees on their own recognizance, to further reduce the population.
- Louisiana Gov. Bobby Jindal could opt into the Affordable Care Act, which would make federal assistance available to cover significant medical costs at the jail. (But don’t count on it. Jindal is so rabid a foe of Obamacare that he has refused to accept the hundreds of millions of dollars of increased Medicare funding available to Louisiana through the Affordable Care Act.)
These broader measures are necessary and desirable to achieve reform at the jail. But each time Rosenberg started to talk about them, Africk cut him off, noting that all such remedies are beyond the power of a federal judge. The alternative to law is politics, but unfortunately it is far from clear that local government officials have the political will to take such steps on their own. Indeed, political solutions are unlikely unless and until concerned citizens begin to pack court hearings and City Council chambers demanding them.
Where does this leave jail reform in New Orleans? The prisoners’ lawyer, Katie Schwartzmann, the most passionate advocate in the room, favored many of the measures mentioned by Rosenberg, but recognized that the judge could not order them. With no guarantee of political solutions, her strategy is to push the court as hard as she can to enforce what’s in front of it — i.e. the consent decree.
What must happen immediately, she argued, is for the court to order the sheriff to hire enough personnel administrators to hire and train the requisite number of additional deputies. And then the sheriff must be ordered to take immediate steps to provide adequate medical and mental health care, rather than waiting six months for his proposed outsourcing of such services.
Africk knows the jail must be brought into compliance with the U.S. Constitution, and seems sincere in his desire to compel that outcome. But he ended the hearing with a remark suggesting it won’t happen any time soon. “Sometimes,” he said, “you have to take the stairs instead of the elevator. I just wish we could run up the stairs.”
Michael Avery is a professor of constitutional law at Suffolk Law School in Boston and co-author of Police Misconduct: Law and Litigation, a leading treatise on civil rights law.