The city of New Orleans says that a federal judge overseeing a long-running consent decree over the city jail doesn’t have the power to order the construction of a controversial new building, even if he believes the building is necessary to effectively care for inmates with medical or mental health needs.
In a court filing Wednesday evening, lawyers for the city defended a request in federal court to abandon work on the proposed jail building known as Phase III, which was intended to be used to house incarcerated people with acute mental illness.
The city has argued that Phase III — which they were ordered to move forward on in March 2019 by U.S. District Judge Lance Africk — is no longer necessary due to a decrease in jail population, the improved medical and mental health care being provided inside the main jail building, and that it is not financially feasible given the dire economic impact of measures put in place to stop the spread of COVID-19.
But the other major parties in the litigation — the jail’s outgoing Compliance Director Darnley Hodge, the Orleans Parish Sheriff’s Office, the United States Department of Justice, and civil rights attorneys representing the inmate plaintiffs’ class — have opposed the city’s request to halt pre-construction work.
The Orleans Justice Center — the main jail building, opened in 2015 to replace the sprawling Orleans Parish Prison complex — was not designed with inmates in need of acute mental health care in mind. Nor was it ever required to. That class of inmates was specifically exempted from a 2011 ordinance passed by the City Council to allow for OJC’s construction.
But the consent decree — a court order put in place in 2013 as part of a class-action lawsuit to reform the jail, long-troubled by violence and poor inmate care — requires the jail to provide adequate mental health care to the inmates for which it’s responsible. In 2014, Africk signed off on what was supposed to be a relatively short-term solution: a deal to move male inmates with acute mental health needs to the Elayn Hunt Correctional Center, a state prison in St. Gabriel. Early last year, however, the state informed the Orleans Parish Sheriff’s Office, which runs the jail, that it wanted to end the agreement.
In the Wednesday filing, the city expanded on its earlier arguments against the building that focused on cost and lack of necessity by claiming that under federal law Africk didn’t have authority to order them to build the facility in the first place, and doesn’t have the authority to order them to continue with its design and construction.
The federal law the city cites delineates the authority federal courts have when attempting to remedy unconstitutional prison conditions — the goal of the consent decree.
The law is part of the Prison Litigation Reform Act, passed in 1996. The court’s remedies, the law reads, must be “narrowly drawn” and extend “no further than necessary to correct the violation.”
It also says that nothing in the law “shall be construed to authorize the courts, in exercising their remedial powers, to order the construction of prisons.”
In the filing on Wednesday, the city argued that federal law “explicitly prohibits the Court from Ordering the City to build a new jail building” and “prevents the Court from Ordering the City to continue with design and construction work with the intention of creating a new jail building when circumstances have changed so dramatically that action must be taken to avoid detriment to the public interest.”
In Africk’s March 2019 order, he instructed the City and Sheriff’s Office to “work collaboratively to design and build a facility that provides for the constitutional treatment of the special populations discussed herein without undue delay, expense or waste.”
In the filing Wednesday the city also, for the first time since being ordered to move forward with Phase III in March of last year, suggested potential alternative plans for housing male detainees with acute mental illness — who will be soon returning from Hunt — in addition to male and female detainees with mental health needs that are now being held in the main jail.
The suggestions were similar to ones made by the city prior to the court’s order to move forward on Phase III, but were rejected by the Sheriff’s Office and Compliance Director Hodge as unfeasible.
Two of the city’s proposed alternative plans would make a facility called the Temporary Detention Center (TDC) a permanent housing facility for those populations. The city has already nearly completed renovations on two TDC buildings, which were meant to be used as a stop-gap measure to house those inmate populations while the construction of Phase III was taking place.
In the past, Hodge — who is on his way out as compliance director following a recent order allowing Sheriff Marlin Gusman to retake control of the jail for the first time in four years — has opposed using the Temporary Detention Center as a permanent solution because it was designed for temporary use and would require an unsustainable amount of maintenance and repairs over time.
Another option the city proposed is closing the Temporary Detention Center and retrofitting the current jail building. Previously, the city had suggested renovating the fourth floor of the jail. In the filing Wednesday, they suggested renovating parts of the second floor.
Hodge had rejected the possible renovation of the fourth floor due to “serious concerns” that construction in the jail building could “severely disrupt” the progress that had been made during his time as compliance director, and would pose a security risk.
The retrofit option, in which there would be no additional permanent facilities beyond the current jail, is the one being championed by the Orleans Parish Prison Reform Coalition, who on Monday delivered hundreds of letters to Africk from community members encouraging him to consider the plan. The group has long opposed any expansion of the jail’s footprint, arguing that there are alternatives to incarceration that are more humane and effective in promoting public safety.
In its letter to Africk, the organization argued that in addition to retrofitting the jail, funds that would have gone toward Phase III should instead be used to build a “community wellness center to care for people with serious mental illness outside of the carceral system.”
“We have tried criminalization of mental disabilities and substance abuse and it does not work,” they wrote. “Jail is not the place for most of these folks.”