Does a federal judge have the authority to order the construction of a new jail building? That is the question currently being debated in the ongoing legal battle between the city of New Orleans, the Orleans Parish Sheriff’s Office, the U.S. Department of Justice, and a group of civil rights lawyers, over where to house Orleans Parish jail detainees with acute mental health needs.
For years, those inmates have been housed at the Elayn Hunt Correctional Center, a state prison in St. Gabriel, about 70 miles outside New Orleans. The arrangement came as a result of the federal consent decree over the New Orleans jail, meant to bring the troubled facility into compliance with the U.S. Constitution. The Orleans Justice Center — the jail building that opened in 2015 to replace the old Orleans Parish Prison complex — was not designed to accommodate inmates with acute mental illness. So in 2014, federal Judge Lance Africk, who is presiding over the consent decree case, signed off on a deal between the state Department of Public Safety and Corrections and the Orleans Parish Sheriff’s Office to send the inmates to Hunt.
But early last year, the Sheriff’s Office announced that the state wanted to end the deal. In March 2019, Africk ordered the city of New Orleans — a third-party defendant in the consent decree case — to move forward with plans to renovate a temporary facility and begin working toward building a new, permanent one, known as Phase III, in order to accommodate those inmates with acute mental illness.
The order specifically mandated “that the City and the Orleans Parish Sheriff’s Office are directed to continue the programming phase of Phase III,” and that “the parties are 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 a court filing last month, the city pointed to a section of a 1996 federal law called the Prison LItigation Reform Act (PLRA) that outlines the authority of federal courts when attempting to improve prison conditions. The section says that nothing in the law “shall be construed to authorize the courts, in exercising their remedial powers, to order the construction of prisons.”
The city argued that the law “explicitly prohibits the Court from Ordering the City to build a new jail building” — and thus, relieves them from the order to move forward with Phase III.
But this week, civil rights attorneys with the Roderick and Solange MacArthur Justice Center — representing people incarcerated at the jail — said that the city’s attorneys have misinterpreted that law, and that it does not apply to the current dispute.
In a Wednesday reply to the city, the attorneys argue that the federal judge did not explicitly order the construction of a new jail facility, but instead ordered the city to continue to move forward in a plan it had already agreed to.
They argue that in 2016, as part of an agreement that established the position of compliance director to run the jail instead of the elected Sheriff, the city had also “negotiated and committed itself to the specific process by which the plan would be finalized for the provision of medical and mental health care to people held in the City’s jail.”
Then, in 2017, Sheriff Marlin Gusman and Gary Maynard, the jail’s court-appointed compliance director at the time, submitted a “supplemental action plan” that called for an 89-bed Phase III facility. According to the attorneys with MacArthur, the city indicated that it was committed to moving forward with that plan.
But due to little actual progress being made on the plan, “deadlines and additional oversight were necessary.” The court’s March 2019 order to move forward with programming of Phase III, they argue, “served that purpose and operationalized the process agreed to by the City.”
“Here, the Court did not order ‘the construction of’ Phase III,” the attorneys wrote on Wednesday.
In addition, the filing says, the city’s continued participation and consent in moving forward with Phase III, along with its failure to object to the orders when they were initially made, mean that its attempt to use federal law to now avoid constructing the new facility should “fail on its face.”
“The City did not raise any objection to these Orders,” the motion reads. “Over the last eighteen months, the current city attorney has filed multiple status reports, confirming that the City was proceeding with Phase III.” (Well into the spring, the city filed periodic status reports on its progress with the planned facility, giving no indication that it objected to the plan.)
Further, the civil rights attorneys also argue that even if Africk did order the construction of Phase III, the language in the PLRA itself does not prohibit a judge from ordering the construction of a new jail building if it is necessary for achieving constitutional care at the jail.
“The challenged court orders sought to advance prior agreements made between the parties in this litigation, including the City,” said Elizabeth Cumming, an attorney with MacArthur, in a statement. “The PLRA simply doesn’t apply to such negotiated commitments, nor to steps taken to move them forward.”
“Even if the challenged orders were considered to require facility construction, the PLRA does not prohibit a court from issuing such a directive when necessary to remedy the sorts of constitutional rights violations this Court has already found,” she said.
But New Orleans City Attorney Sunni LeBeouf said in a statement to The Lens that the PLRA does prohibit the federal court from ordering the construction of a new jail facility, and that changing circumstances should allow the city to abandon plans for Phase III.
“To the extent the parties argue that the City agreed to proceed in any manner previously, circumstances have changed so dramatically over the last several years, and over the last several months, that the City is entitled to relief from the Court’s Order requiring construction of a new jail building,” she said.
Among those changing circumstances, the city has argued, is a significantly diminished jail population, and a projected revenue shortfall due to the economic impacts of the COVID-19 pandemic. In a recent court filing they called Phase III a “waste of taxpayer dollars.”
“It contradicts logic for Orleans Parish to have a state of the art jail building with 1,438 beds, and an inmate population of 888 as of this date, while the City is simultaneously being ordered by the Court to construct a new jail building for expanded jail capacity,” LeBeouf said. “While the City of New Orleans remains committed to providing adequate funding to the Orleans Parish Sheriff’s Office, the City is also required to adequately manage limited City resources, and right now the City is experiencing a financial crisis where budget cuts citywide are imminent. The City of New Orleans cannot reasonably be expected to continue increasing the jail’s budget to the detriment of Orleans Parish residents.”
Phase III, an 89-bed building that would be located in an empty lot between the jail dormitory building and its kitchen/warehouse facility, has been debated for years, well before the state agreed to take Orleans Parish inmates into Hunt.
Many criminal justice reform advocates in the city, notably the Orleans Parish Prison Reform Coalition, have long opposed any expansion of the jail beyond its current size. The city government — over two mayoral administrations — has taken a number of different positions on Phase III. In 2012, The Lens reported that a top official in Mayor Mitch Landrieu’s administration was in talks with Gusman about a much larger facility. The Landrieu administration openly agreed to the construction of a new facility in August 2013. Landrieu pulled his support and pushed for a retrofit of the Orleans Justice Center, then later supported a scaled-down 89-bed version of Phase III, which is the current plan.
In 2019, the order to renovate the Temporary Detention Center and begin work on Phase III came only after the Cantrell administration offered several alternatives, which were rejected by the Sheriff’s Office. This summer, as it sought to get out of that order, the city has revived those alternatives.
One option is to make the Temporary Detention Center a permanent housing unit for those inmates. Last week the city announced that it had completed renovations on the facility in order to house patients with acute mental illness, but those renovations were only meant to provide sufficient housing until Phase III was built. Another option is to retrofit a single floor of the main jail building.
Gusman has long been opposed to these alternative plans, calling them impractical.
In their Wednesday filing, the civil rights attorneys called the city’s alternative plans “underdeveloped” and said they “lacked sufficient detail” to determine whether or not they would be adequate alternatives to Phase III.
A hearing to determine the future of the Phase III plans is scheduled for Oct. 5 in front of Judge Africk.
This story has been updated to include a statement from New Orleans City Attorney Sunni LeBeouf.