A hearing in U.S. District Court in New Orleans to determine whether or not the city of New Orleans will be required to continue with the construction of a new 89-bed jail facility known as Phase III — which would be used to house detainees with mental illness and medical issues — began on Tuesday morning via videoconference. The hearing is expected to last several days — possibly into next week.
For more than a year, the city was moving forward with the development of Phase III after grudgingly agreeing to the plan and being ordered by a federal judge — who oversees the jail’s long standing consent decree — to proceed with it in March 2019.
That came after the state Department of Public Safety and Corrections said that it would soon stop housing Orleans Parish inmates with acute mental health needs at the Elayn Hunt Correctional Center, as it had been doing for several years. The deal with the state was struck in 2014 because the Orleans Justice Center, which would open the following year, was not designed to accommodate those inmates.
But last June, the city abruptly stopped paying the architects who were contracted to work on the facility. In a federal court filing, they argued that changing circumstances made Phase III no longer financially feasible or necessary, and they should not be required to move forward.
The other parties involved in the consent decree litigation, including the United States Department of Justice, civil rights attorneys who represent inmates in the jail and the Orleans Parish Sheriff’s Office all want the federal court to order the city to continue work on the building. (Sheriff Marlin Gusman has argued for Phase III for the better part of a decade.)
Citing a projected $150 million budget shortfall due to the economic impacts of the coronavirus pandemic, the city has argued that it doesn’t have the money to build or operate the $51 million facility. It has also argued that the declining jail population makes the new facility unnecessary.
But the Sheriff’s Office says that the current jail is not adequate to provide constitutional care for people in its custody, regardless of population, and the lack of city funding does not exempt the city from that responsibility. The U.S. Department of Justice and civil rights attorneys representing people in custody at the jail have also protested in court the city’s attempt to evade the court’s order.
The hearing that began on Tuesday morning will allow each of the various parties to call witnesses to testify on the relative necessity and viability of Phase III.
City budget already strained by pandemic
The city used the first part of the hearing on Tuesday morning to call witnesses that testified on the costs of building and maintaining the facility, making the argument that the city could not afford it. Mayor LaToya Cantrell’s Chief Administrative Officer Gilbert Montaño said that the costs of operating a new facility could come at the expense of public safety, given the cuts that have already been required due to the pandemic.
The arguments come one day after the Cantrell administration requested partial furloughs of all city employees due to decreased tax revenues from the pandemic.
“We are still not at level ground where I can close the budget,” Montaño said. “And agencies — police, fire, EMS, everybody — has been drastically affected by these cuts.”
The city has previously said that FEMA funds will cover only $36 million of the $51 million construction cost, though over the summer, jail Compliance Director Darnley Hodge argued in a court filing that the city should have about $48 million in federal funding available for Phase III.
But the costs don’t end with construction. The city has estimated that the operating costs for Phase III will require a $9.5 million increase in the Sheriff’s Office budget allocation from the city, which Montaño said would be taken from the other public safety agencies.
“The money is going to be taken from those major agencies, and that’s what keeps me up and scares me,” Montaño said.
The city also called Jonathan Wisbey, the city’s budget liaison to the Sheriff’s Office, who testified regarding the declining jail population and steadily increasing OPSO budget. Wisby said that in 2019, operating costs amounted to an average of $73,000 per inmate per year. Wisbey said that was much greater than 11 other comparable jail facilities the city identified.
That takes all funding sources into account, including state revenue and a dedicated property tax, but the direct city allocation accounted for the bulk of the revenue, about $53 million out of a total $73 million budget.
“I did not find a jail that was at that level,” Wisby said. “The next highest I could find was about 10 percent less than that.”
An attorney for Hodge later disputed Wisbey’s figures, saying the budget also pays for non-jail expenses, like deputies providing security at the Orleans Parish Criminal District Court.
As attorneys for the city made their case, several dozen people — led by the Orleans Parish Prison Reform Coalition — held a rally in Lafayette Square to protest building Phase III. OPPRC has long opposed any expansion of the jail beyond its current footprint. Sade Dumas, the group’s executive director, noted that the city had previously signaled support for the facility. In 2017, the New Orleans City Council, with then-Mayor Mitch Landrieu’s support, voted to advance the proposed building to the City Planning Commission. Cantrell was the only council member to vote against the proposal. (After that vote, the city did not follow up by submitting a plan to the City Planning Commission, so the motion was not considered by city planners.)
But in 2019 — facing the end of the agreement that kept acutely mentally ill inmates housed at Hunt — the Cantrell administration reluctantly agreed to begin work on Phase III. It now wants out of the agreement.
“We believe that care comes from humans, not from cages,” Dumas said over a megaphone. “We have finally rallied Mayor Cantrell and the city of New Orleans to say, ‘We will not build this jail.’ “
‘The court has ordered the city to solve a problem’
In court filings, the city has argued that a federal judge doesn’t have the authority to order the construction of a new jail facility under federal law. But Federal Magistrate Judge Michael B. North, who presided over the hearing on Tuesday, took issue with the idea that the court had ordered the construction of a new jail facility at all.
Throughout, North made the point that the court was only telling the city to solve the problem of providing an adequate facility to house certain types of incarcerated populations — and Phase III was the plan that the city agreed to.
“On multiple occasions the district judge has ordered the city and the parties to submit a permanent plan for a permanent solution to the problem of housing these special populations,” North said at one point. “At least three times that I can think of that order has been issued. And three times this is the plan that the city has submitted — some form of Phase III, less than 100 bed Phase III facility. Three times.”
The issue came up again when Ramsey Green, the city’s deputy chief administrative officer for infrastructure, was providing testimony.
“I’m just trying to clear up and get from your perspective — your appreciation — how we got to where we are today,” North told Green. “Because my appreciation for how we got to where we are, is that the city on multiple occasions, beginning before you got here, was ordered to solve this problem. And every time it was ordered to solve this problem, it got some variation of this Phase III plan.”
Green said that he agreed the city had agreed to move forward with renovations of another jail facility — the Temporary Detention Center — as a short-term solution to the problem of inmates returning from Elayn Hunt, but hedged when pressed on whether the city had committed to the construction of Phase III.
He instead said that the Phase III initiative they took on was only to “design” the facility.
“Once it was designed, what were you planning to do with those designs?” North asked.
“Ostensibly you build it,” Green said. “But there are times when you design things, and things change.”
But North was adamant that it was the city’s plan that the court was ordering them to move forward on.
“I keep hearing that the court has ordered the city to build a jail, and that’s not what happened,” North said. “And I’m asking you if you ever recall the court ordering the city to build a jail, on your watch?”
“I do not formally recall, judge, you ordering us to build a jail,” Green said. “I will tell you this: In my interpretation, you definitely wanted us to build a jail.”
