Attorneys representing the United States Department of Justice, Orleans Parish Sheriff Marlin Gusman, and inmates being held at the New Orleans jail all oppose the city’s request to stop moving forward on the plans for a new jail building known as “Phase III.”
All three parties filed responses in federal court on Tuesday expressing their opposition. The jails Compliance Director, Darnley Hodge, also opposed the city’s request in a filing last week.
The Tuesday filings came a day after a report was released by federal jail monitors, which noted improvements at the facility, but said that Phase III was “critical to the provision of mental and medical health services in accordance with the Consent Judgement.”
The jail has been under a consent decree since 2013, which aims to bring conditions at the facility into compliance with the United States Constitution. Inadequate mental health care has long been an issue. In 2016, the mental health monitor called mental health care at the jail “abysmal.”
But more recently, according to jail monitors, mental health care at the facility has improved, thanks in part to a partnership between Tulane University and the jails healthcare provider, Wellpath.
Phase III has been presented as a solution to housing dozens of mentally ill inmates who are currently being held at Elayn Hunt Correctional Facility, a state prison near Baton Rouge, but are slated to return to New Orleans when a contract with the state runs out. Currently, there is no designated space for those inmates to be held in the main jail building, and the city has nearly completed renovations of a facility called the Temporary Detention Center to be used to house them in the short-term.
A city official has said that space can be used until 2022.
For years, however, there has been vocal opposition to Phase III from activists, attorneys, and community groups, many of whom now support the city’s efforts to avoid building it. They have said that the main jail can be retrofitted to provide space and other necessary physical infrastructure for housing inmates with acute mental illness. They have also advocated for more robust mental health treatment in the community and alternatives to incarceration for people who have mental illness.
The city, in its recent filings, however, has not presented an alternative solution to housing inmates with acute mental illness — either in the form of a retrofit of the current jail or a possible solution outside of it. Instead, the city’s attorneys have argued that inmates are currently receiving sufficient medical and mental health care.
In addition, they have argued that the recent reduction in jail population makes Phase III unnecessary, and a budget shortfall stemming from the impacts of COVID-19 makes the facility financially unworkable.
But all the other parties in the federal lawsuit don’t find the city’s arguments compelling, legally or factually.
In a joint filing, the U.S. Department of Justice and attorneys with the Roderick and Solange MacArthur Justice Center, who represent inmates at the jail, said that “medical and mental health care at the jail is not constitutionally adequate and does not comply with the Consent Judgment due in part to longstanding structural deficiencies with OPSO’s current facilities.”
“Further,” they wrote, “population reduction alone cannot solve these structural problems. And finally, lack of funding is not a defense to unconstitutional conditions.”
In their filing, they laid out the problems with the physical structure of the current jail that does not allow for adequate treatment of people with mental illness — not just for those male acute patients who are currently being housed at Hunt, but also female acute patients and those with less severe conditions, both of whom are currently being held at the jail in New Orleans.
They said that the current jail does not have adequate space for therapeutic group treatment, nor for individual mental health assessments, which sometimes forces psychiatrists to meet with patients through the bars of their cells.
“During these cell-front contacts, the mental health provider stands in front of the person’s cell door and attempts to engage the patient through the closed door,” the attorneys wrote. “Even if the door is open, the person may be restrained, and there is no visual or audio privacy from other prisoners or staff. This lack of privacy does not allow patients to fully disclose concerns and prevents mental health providers from developing a full portrait of a new patient’s needs or how a patient may be managing on a given day.”
They also claim that there are not enough suicide resistant cells in the jail — a problem exacerbated by the fact that the jail is often understaffed and suicidal inmates can not always be under direct observation.
In Gusman’s brief, attorneys wrote that the COVID-19 pandemic demonstrated the need for another facility and the impracticality of retrofitting the current jail to provide space for inmates with mental illness.
“The pandemic has illustrated the error with the long-held position of the City that any unused housing space in the OJC should be converted to mental health housing in lieu of construction of the Special Needs Facility,” attorneys for Gusman wrote. “During the pandemic, despite a significant reduction in inmate population due in part to Sheriff Gusman’s request, the OJC did not have sufficient space to house inmates with the additional classification levels of both male and female suspected COVID, confirmed COVID, and intake-quarantine of each gender,”
Sade Dumas, Executive Director of the Orleans Parish Prison Reform Coalition (OPPRC) disagrees with the Sheriff’s assessment, and says retrofitting the current jail is both viable and preferable.
“A proposed retrofit of the existing jail has been endorsed by both experts and advocates, and this is in the best interest of our community,” she said in a statement. “This would offer a constitutional solution for people in the jail with mental illness on an even faster timeline than the Phase III plan.”
She said the money for Phase III would be better spent on mental health services outside of a jail setting.
The filings on Tuesday appeared to put attorneys with the MacArthur Justice Center at odds with organizations they are often allied with — such as OPPRC and the Vera Institute for Justice.
But Emily Washington, Deputy Director at MacArthur, said in an email that they support “any efforts to provide mental health care to New Orleanians through means outside of a jail facility, and similarly encourages further reductions in the Orleans jail population,” but that “the problems of unsafe housing and inadequate treatment for people with serious mental health needs in OPSO custody has not been resolved by population reduction efforts alone.”
“The reality is that people with serious mental health needs are locked up in our city’s jail right now, and will be for the foreseeable future,” she said. “So long as that is true, the City is responsible for ensuring that these people receive the constitutional care to which they are entitled.”