A federal hearing to determine whether the city of New Orleans will be required to build a new mental health facility — known as Phase III — at the jail continued on Wednesday. And lawyers for Mayor LaToya Cantrell’s administration continued to make the case that it should be let out of a federal judge’s 2019 order to build the facility in order to provide sufficient care for inmates with mental illness and comply with a long-running federal consent decree over the jail.

Wednesday was the second day of testimony in the Phase III hearing, which is part of the consent decree case. The city, the first party to present its case, has called 10 witnesses and has not yet gone through them all. The other parties to the consent decree will follow.

There are two main elements to the city’s argument against the building: that it’s too expensive, and that it’s not necessary to provide adequate mental health care for people under the jail’s supervision.

In the first day of the consent decree hearing, on Tuesday, testimony focused on the first one — the financial burden of the $51 million Phase III facility. On Wednesday, the city’s witnesses addressed point number two — explaining how alternative options to Phase III can provide adequate care for incarcerated people. 

But Magistrate Judge Michael North said that it won’t matter how good the city’s alternative plans are if they can’t show that the Federal Emergency Management Agency will be willing to pay for them. 

North is presiding over the hearing and will provide a recommendation to U.S. District Judge Lance Africk, who has presided over the consent decree litigation since 2012. 

A city employee on Tuesday testified that she had discussions with a representative from FEMA, who assured her that the agency was willing to use the dedicated Phase III funds for the alternative plans.

But North said on Wednesday that her recollection of a conversation wasn’t compelling evidence. 

“I’m telling you right now that there is no way I will recommend to Judge Africk, nor do I think he will ever accept, that FEMA will approve this project on the basis of a city employee saying they had a phone call with somebody who works for FEMA,” he said. 

“I’ve got 9,000 pages of documents in my conference room related to the city and the jail’s negotiations and interactions with FEMA since Katrina,” North continued. “Now I’ve got 9,000 pages of documents back there, and I’m supposed to believe that this can be done on the basis of a phone call? You’re gonna need evidence.”

Currently, according to the city, FEMA has approved $36 million in funding for Phase III. They have said that construction of the building will cost $51 million, leaving them on the hook for the remaining $15 million.

Alternatively, a retrofit option of the current jail facility that the city is proposing would cost an estimated $9 million — which the city has said they believe FEMA will cover. It has also said that it could use the leftover FEMA funding for other projects. 

Attorneys for the city said that they would work to provide more concrete evidence of FEMA’s willingness to fund alternative plans in the coming days, claiming it was not just “wishful thinking” on their part. 

“There is somewhere between $36 million and $50 million of federal funds unspent, yet available, to solve this problem that the court has been trying to solve for eight years,” North said. “And if the city chooses to be cavalier about whether, maybe, we get this relief, and are given more time to come up with a solution, maybe FEMA will let us do it, that’s your choice. And I’m not requesting anything, to be clear. I am observing that the state of the record currently is such that you will not get relief based on the fact that I’m being told by someone —” 

North’s screen then reportedly froze.

“It would probably be better for everybody if I remained frozen,” North said. “What I am saying to you is — I’m trying to help you, OK?”

Decreasing jail population and improving mental health care

Will Snowden, director of the New Orleans office of criminal justice reform group the Vera Institute for Justice, testified at the hearing that city-led programs to reduce the jail’s population have worked. As a result, the jail is far below its capacity, leaving more than enough room to renovate its second floor as a mental-health wing. At an estimated cost of $9 to $10 million, that’s the city’s preferred plan and one that Vera supports.

Along with building a new jail with a bed cap of 1,438, Snowden testified that efforts to reduce the city’s reliance on cash bail, limit the number of arrests for minor, nonviolent offenses and increase the use non-jail alternatives for people with serious mental illness or substance abuse problems have resulted in an 80-percent-plus reduction in the average daily jail population over the past 15 years, from 6,500 to about 1,100 before the COVID-19 pandemic. Over the past several months, it’s gone down even further. As of this week, there are fewer than 900 inmates in the jail. 

Snowden said building Phase III will undermine that work. 

“We believe that unnecessarily increasing the jail’s footprint will go against our goal of reducing incarceration,” he said. “It’s something that is just bad policy.” 

Snowden, a former public defender, said that he believes that additional work — particularly on bail reform — will further reduce the population, particularly with buy-in from new, incoming judges and a reform-minded district attorney after the November and December elections. 

“If they work to advance bail reform, there certainly will be a safe reduction to the jail population,” he said. 

Snowden said he doesn’t believe people with serious mental illnesses should be in jail at all. Rather, they should be in a health care setting.

“The conversation that needs to be had today, from my perspective, is two-fold: First bringing the jail into compliance and second increasing community-based mental health care,” he said. “Because of that lack of resources, the default becomes the jail. We are at a moment when we have to pivot away from that.”

But Snowden conceded that the city does not currently have adequate community-based care.

What’s more, as Snowden admitted during cross-examination by Rick Stanley, an attorney for jail Compliance Director Darnley Hodge, the city has not made any specific commitments to dedicate savings it might realize from a suspension of Phase III to building up those services. After years of back-and-forth on the building, and urging from criminal justice reform and mental health advocates to stop using the jail as a de facto mental health hospital, the city only recently commissioned a feasibility study on how best to transition large numbers of people with mental illness away from being held in jail. 

Blake Arcuri, an attorney for the Orleans Parish Sheriff’s Office, pressed Snowden on whether it’s practical to convert the second floor of the jail. Arcuri said the second floor is currently used to house people who pose a security risk. It is the only part of the jail where all furniture is bolted to the floor and where cells have sliding doors, which Arcuri said are considered more secure than doors that swing open.

Arcuri asked where those inmates should be placed if the second floor retrofit happens. Snowden said it’s his understanding that the jail has empty housing pods now, and those could be renovated for high-risk inmates.

“That would certainly increase the cost of the city’s renovation,” Arcuri said.

“That makes sense, but I don’t think it would be near $49 million,” Snowden said.  

Later, William Kissel, senior vice president of Wellpath, the jail’s medical and mental health contractor, testified on the progress the jail has made in providing mental health services without Phase III.

Though the jail has yet to come into full compliance with many provisions of the consent decree that relate to medical and mental health, according to the most recent report by a federally appointed monitoring team, Kissel said it was a “totally different facility” from the one he first encountered when he began overseeing it in 2015. 

“The difference between the facility when I became involved and now is incredible,” Kissel said. And I’m proud of that. I’m proud of the partnership we have with OPSO. I think it’s one of the best facilities we have. I would put it up against any facility.”

Kissel also testified that some of the remaining areas of weakness will be remedied once more mentally ill inmates are moved into the Temporary Detention Center, which has been renovated as a short-term mental health facility. Others, he said, relate to staffing shortages of deputies and healthcare staff. Staffing has been an ongoing challenge for both the Sheriff’s Office and Wellpath. And Phase III, he testified, will require more staff. 

The retrofit option

The city also called James Austin, a consultant who produced a report for the city that outlined alternative plans to Phase III. Austin previously worked as a consultant for the city a decade ago as it was planning on a new jail — the Orleans Justice Center, which opened in 2015 — to replace the sprawling Orleans Parish Prison complex. 

Two of those alternative options would be to convert the Temporary Detention Center — which was recently renovated to temporarily house detainees with acute and sub-acute mental illness —  into a permanent facility.

But the city, as well as advocate groups, would prefer a plan that would retrofit the second floor of the main jail building — which Austin presented to the New Orleans City Council last month

“What were trying to do is create a situation architecturally that would mimic as much as possible what the Phase III facility would do,” Austin said. “So clearly we’ll have cells. We would do renovation to those cells. We want to make sure we have adequate interview space so patients would be able to engage, primarily one on one, with mental health staff.”

But Austin argued that the biggest problem with implementing mental health care in the facility was staffing shortages — not of mental health professionals, but security staff. 

He pointed to  a passage from the most recent report from independent jail monitors that notes “medical and psychiatric staff report a large number of obstacles to access patients due to a lack of custody staff. WellPath reported data that about one-third of intended clinical encounters do not occur because security staff is not available.”

By renovating the second floor of the current jail, Austin said there would be no need for additional security staff. 

“The biggest issue is that we cannot find people to work in correctional facilities,” Austin said.  “This approach — the renovation approach — is accepting that. The only staff we’re gonna get is what we got.”

Charles Maldonado contributed to this report. 

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...