Attorneys for Darnley Hodge, the appointed compliance director who oversees the New Orleans jail, on Wednesday filed a lengthy opposition to a request by the city of New Orleans in federal court for permission to suspend planning for a new jail facility known as Phase III. 

In the filing — part of a federal consent decree over the New Orleans jail — Hodge alleges that the city was violating multiple court orders — as well as an agreement with the Sheriff’s office — by suspending design work on Phase III last month, and that it is legally obligated to move forward with the facility.

“For years, the parties to this litigation have been working to program, design, and construct an 89-bed jail facility that will house inmates with mental and medical health issues (‘Phase III’) in a sustainably constitutional manner,” Hodge’s attorneys wrote. “On June 5, 2020, the City of New Orleans (‘City’) unilaterally and without notice to the Court or the other parties halted the progress on Phase III by suspending the services of the architect. In doing so, the City ran afoul of at least two of this Court’s orders.”

The Phase III facility — set to be located in an empty lot between the jail’s main housing unit and its kitchen/warehouse facility — has been put forward as a way to house inmates with acute mental illness that have for years been transferred to Elayn Hunt Correctional Center, a state prison about 70 miles outside of New Orleans.

The main jail building, which was opened in 2015 to replace the sprawling Orleans Parish Prison complex, was not designed to accommodate acute mental health care, nor was it required to under a 2011 city ordinance allowing for its construction. But the consent decree requires the Sheriff’s Office to provide adequate care for all prisoners, including those with mental illness. Finding a way to house those inmates has been a major point of contention since Judge Lance Africk, who is presiding over the consent decree litigation, was first made aware of the design shortcomings in May 2013, months after the consent decree had been proposed and just a few weeks before he would approve it.

The transfer to Hunt, approved in 2014, was never meant to be a permanent solution to the problem. First executed as a three-year agreement, it was later extended. But last year, the state informed Hodge that it wanted the arrangement to end.

As a short-term plan to house those inmates, the city agreed to renovate a facility known as the Temporary Detention Center. According to recent court filings, those renovations are nearing completion. The city also said it would agree to move forward with Phase III — a permanent, 89-bed facility — and hired an architect to develop the plans. 

Africk ordered the city to adopt the plans in March 2019. TDC renovations began, and the city began working with its architectural firm on Phase III, with construction of the building expected to be complete in 2022. 

But in early June the city unexpectedly had the architects suspend work on the facility.

The move was criticized by Africk, who wrote in a filing that he was “at a loss to understand what led the City, after years of discussions, negotiated agreements of the parties, and orders by this Court addressing deficiencies in the treatment of inmates with serious medical and mental health issues, to take the position that it could unilaterally cease complying with this Court’s previous orders.” 

In late June, the city formally asked Africk for permission to halt work on the Phase III facility. In a court filing, they called the plans “a waste of taxpayer money.” In addition to being financially infeasible with a projected budget shortfall caused by the coronavirus pandemic, they argued that the facility was no longer needed due to the declining population and improved medical and mental health care at the jail. 

But attorneys for Hodge, in the most recent filing, dismissed those concerns as irrelevant and without legal merit. 

Despite improved care at the jail, Phase III, they argued, is necessary for providing constitutional care for those inmates with acute mental illness, pointing to reports from the federally appointed jail monitors that in the past have called the need for Phase III “critical.” 

“The Constitution of the United States is not optional, and the City must meet its constitutional obligations to fund the construction and the operation of a medical and mental health facility, i.e., Phase III,” the attorneys for Hodge wrote. 

In addition, they claimed that the city has plenty of money from the Federal Emergency Management Agency (FEMA) that was designated for rebuilding the jail following Hurricane Katrina, some of which they explicitly pledged to use for the construction of Phase III in 2016.

The money Hodge claims should be dedicated to building Phase III was money from FEMA a dedication of around 70 million dollars that was meant to replace an old jail building known as Templeman II. Some of that money was used for other agreed upon projects, but Hodge says the city should have $47.9 million leftover for Phase III.  

But Hodge also claims that the city has put the Templeman II money, along with money leftover from other FEMA projects, in a pooled fund dedicated to  “Combined Criminal Justice Alternate Projects.”  

In the filing, he argues that money from that pool, which he claims has $88 million in undedicated funding, could also be used to build Phase III.

“There should be no dispute that the City has enough FEMA funding to build Phase III,” his attorneys wrote. “The City may no longer wish to use FEMA-pooled monies to build Phase III, but the funds are available to do so. Indeed, the City has indicated an intent to use available FEMA funds in the future for other City projects.” 

Hodge also shot down two alternatives the city has previously proposed as a solution for housing mentally ill inmates — the permanent use of the Temporary Detention Center, and the renovation of a floor of the current jail. Those plans, he said, would “run afoul of FEMA regulations” and would not provide a permanent solution to adequately care for inmates with acute mental illness. 

Meanwhile, the city and advocates have been discussing alternative possibilities to Phase III, including developing more robust mental health care solutions outside of the jail. 

But Hodge isn’t the only one who takes issue with the city’s move to end work on Phase III. Emily Washington, an attorney with the Roderick & Solange MacArthur Justice Center, who represent the jail inmates in the consent decree litigation, said in an email that the city’s request showed “a disturbing disregard for ongoing harm to people currently in its jail as a result of long-acknowledged and structural barriers to providing constitutional medical and mental health care.”

“Timely provision of necessary care to everyone imprisoned in our jail should be the priority, especially for the City which is responsible for making that care possible,” she wrote.

This story has been updated to include a comment from Emily Washington of the Roderick & Solange MacArthur Justice Center.

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...