For months prior to the city government’s announcement that it no longer intended to move forward with Phase III of the New Orleans jail — a proposed 89-bed facility that was intended to provide a space for people in custody with acute mental health needs, currently being held at a state prison — a group of advocates, health experts, and criminal justice actors was already meeting to discuss alternatives options.

That group has included criminal justice advocates and stakeholders, including representatives from the Vera Institute of Justice, the Orleans Public Defenders (OPD) office, the Orleans Parish Prison Reform Coalition (OPPRC), and Healing Minds NOLA, in addition to psychiatrists and first responders. Representatives from the mayor’s office have also been periodically involved. 

The discussions have focused both on what necessary steps need to be taken to bring the jail into compliance with a federal consent decree over the jail with regards to mental health care, in addition to developing a broader and more holistic approach to mental health care in the city.

“We’ve been convening these conversations with the focus of addressing individuals who find themselves at the intersection of the criminal legal system and mental illness, and really just understanding that the high volume of people with mental illness in the jail represents that the jail is not the best facility or the best system to be responding to this health issue,” said Will Snowden, the director of Vera’s New Orleans office. 

In late June, lawyers for the city of New Orleans asked U.S. District Judge Lance Africk, who presides over the jails consent decree litigation, for permission to stop working on Phase III. Following negotiations between the city and the Orleans Parish Sheriff’s Office, Africk had ordered the construction of Phase III as a permanent solution to housing inmates with acute mental illness. 

But in a court filing, the city called the new facility a “waste of taxpayer dollars” and said that given the budget crisis local government was already facing due to the coronavirus, building it would require “cutting basic city services.”  Attorneys for the city also argued that a rapidly  declining jail population made a new jail facility unnecessary. 

What exactly the city will propose to Africk as an alternative to Phase III, however, and whether it will be enough to satisfy the requirements of the consent judgement, remains to be seen. In the most recent report from the jail monitors report they noted that “the construction and occupation of Phase III is critical to the provision of mental and medical health services in accordance with the Consent Judgment.” 

In filings, the city has said that renovations to the Temporary Detention Center — also ordered by Africk as a stopgap measure to hold acutely mentally ill prisoners while Phase III is being constructed — are nearly complete, and they will be able to provide constitutional care for patients with severe mental illness. At a press conference earlier this month, the city’s infrastructure chief, Ramsey Green, told reporters that TDC would be adequate for providing care until at least 2022. He said they had not determined whether or not they will suggest retrofitting the current jail as a permanent solution, which has been previously suggested by the city and pushed by advocates.

In addition, the city has implied that it is making efforts to reduce the population of mentally ill inmates from the jail facility. In a court filing, attorneys noted that the city has “requested a feasibility study funded by the MacArthur Foundation” — who has given the city millions of dollars in grant funding to reduce the jail population — “to develop processes to divert people on the City’s behavioral caseload from jail, and to transition patients from jail upon their release.”

The city has said Phase III is projected to cost $51 million dollars, and increase the operating costs of the jail significantly. 

Advocates say that all of that money could be better spent elsewhere. The debate over the expansion in some ways mirrors the broader conversation taking place around the path forward in transforming the criminal justice system —from policing, to prosecution, to mental health and drug treatment — and whether resources should be expended within the system or should be focused outside of it.

“As we became more and more aware of how the system was failing those with serious mental illness,” said Snowden, “we began shifting our approach from reforming the criminal legal system to really anchor this in an appropriate health response to people with mental illness.”

The motion by the city to stop work on Phase III is currently pending before the court, and eventually an evidentiary hearing will be held where the various parties involved in the litigation will be able to call witnesses and present evidence on their preferred course of action with relation to Phase III. That hearing has not yet been scheduled. 

An alternative plan 

Since the start of the latest round of negotiations with the Sheriff’s Office around a possible Phase III, Mayor LaToya Cantrell has indicated her reticence. In February of 2019, the city said that it had presented the Sheriff’s office with a number of alternative plans

Two of those plans involved turning the Temporary Detention Center into a long-term housing unit for inmates with severe mental illness. They were rejected by the Sheriff’s Office, which noted that the TDC was constructed in 2011 with the intention of being temporary and only had a lifespan of 10 years. They argued that the necessary maintenance and construction to turn it into a permanent facility would be too costly. In addition, they said the TDC could not remain occupied during a hurricane, and that it was inconvenient in terms of providing laundry and food services.

The other option the city suggested was retrofitting a floor of the current jail to provide adequate facilities for those with severe mental illness. The Sheriff’s Office also rejected that plan, arguing that doing construction in an operating jail would pose a security risk. 

The city eventually said they would move forward with the sheriff’s plan of renovating TDC for short-term use and developing Phase III, “while simultaneously continuing to explore other options which may be more feasible given the temporary nature of this very costly solution.”

The group who has been meeting to organize an alternative to Phase III have also been considering options, including a retrofit of the current jail, as well as the possibility of a local forensic hospital, a diversion facility, and long-term residential treatment centers. A challenge for advocates is balancing the promotion of robust treatment for those with serious mental illness who are already in jail, while simultaneously urging the city and the sheriff to move away from investing more resources in the criminal justice system — which they feel is ill-equipped for handling those individuals.

Barksdale Hortenstine, Jr., who is the Director of the Municipal Court Mental Health Unit at the Orleans Public Defenders office, said he wasn’t certain that there needed to be any change in the structure of the current jail to accommodate the few inmates with serious mental illness. But he said that if, indeed, there were infrastructure changes necessary, those should come in the form of renovations of the current jail — known as Phase II — not a new facility. 

“We should spend whatever is required — if anything truly is — to bring OJC into compliance through a Phase II retrofit,” he said. “This would bring us into compliance with the federal monitors and leave us a substantial amount of federal money to be used to establish a stabilization center for individuals with serious mental illness, and establish evidence based alternatives to criminal legal system involvement that better meet the needs of our community.”

“Jails are literally the worst place for a person experiencing an acute psychotic crisis,” Hortenstine said. 

“We need a whole strategic plan,” said Janet Hays, of Healing Minds NOLA, in an interview. “It has to be a whole plan. It can’t be piecemeal planning— which is what we’re trying to do now.” 

Hays is a proponent of loosening civil-commitment laws, and increasing funding for Assisted Outpatient Treatment programs, which are civil-court-ordered and involve a team of specialists to monitor a person’s treatment plan and mandate their participation. 

“It’s not just about a diversion center, and it’s not just about a hospital facility, or competency services, and it’s not just about residential treatment beds,” Hays said. “Everything has to connect.” 

She said the goal is to provide “a full, streamlined, continuum of coordinated psychiatric treatment and care for people with untreated and under-treated serious mental illness.”

In a project outline exploring mental health care solutions for the city developed by Hays and Pres Kabacoff, a local developer who has been involved in criminal justice reform efforts, they emphasized the need for any solutions to be centered outside of the jail, and the criminal justice system as a whole. 

“The New Orleans jail must be brought into compliance, but we must be cautious that in doing so, we are not forever institutionalizing the criminalization of serious mental illness,”  the proposal read. “Reforming our mental ‘health’ system in a way that delivers treatment and care to people who struggle with serious mental “illness”, requires a unified effort.”

“Any new facility must be administered by mental health professionals, not the Sheriff, nor the criminal justice system that was never designed to care for this population.” 

Hays also said she plans to propose to the city a task force in the Mayor’s office that would be focused on serious mental illness. The task force would collect data on how those with serious mental illness move through both the health care and criminal justice systems, and provide evidence-based guidance to the city. 

For advocates who have been pushing for an alternative to Phase III and a more comprehensive approach to mental health care outside of the criminal justice system, the recent shift by the city has given them a chance to influence the course of events with regards to the jail.

“It really kind of presented us with an opening and an opportunity to get behind the mayor in a way that we hadn’t been able to before,” said Will Snowden of Vera. “Because previously I believe the mayor was opposed to Phase III — she didn’t believe Phase III was the solution to providing care for people with serious mental illness — but kind of felt that her hands were tied.” 

But some advocates see Orleans Parish Sheriff Marlin Gusman — who may soon take over day-to-day operations at the jail from current appointed compliance director Darnely Hodge — as an obstacle in achieving an alternative to Phase III. Gusman has long stressed the necessity of the new facility in order to accommodate inmates with serious mental illness. 

“I would love to see the sheriff be a stronger advocate for alternatives to incarceration for people with untreated and under-treated serious mental illnesses,” Hays said in an email. 

She also noted that if Gusman was unwilling to be a partner in creating alternatives to incarceration for those with mental illness, she would be “happy to run against him” in the next election — which would take place in 2022.

The sheriff declined to comment for this story.