After nearly two weeks of arguments and witness testimony, the City of New Orleans on Monday made its final pitch in federal court to permanently stop work on an 89-bed jail facility known as Phase III, which would be used to house detainees with acute and subacute mental illness.
The hearing is part of long-running federal civil rights litigation that led to the 2013 adoption of a federal consent decree over the New Orleans jail. The other parties to the litigation —including the Orleans Parish Sheriff’s Office, the United States Department of Justice, and civil rights attorneys representing detainees at the jail — all oppose the city’s request to suspend Phase III, and also presented their final arguments as to why the the city should be required to move forward with the building on Monday.
The hearing was the latest in a saga of discussions and disputes that go back nearly a decade over the possibility of a jail building specifically designed to house detainees with acute and subacute mental health needs, which would also contain a medical infirmary. The current jail — the Orleans Justice Center, opened in 2015 — was built without sufficient space to house those detainees, and for years they were sent to receive care at Elayn Hunt Correctional Center, outside of Baton Rouge.
The Sheriff’s Office has consistently pushed for a Phase III facility, while the city has at times argued that a single floor of the current jail could be retrofitted to accommodate those inmates.
But in 2017, under Mayor Mitch Landrieu, the city agreed to a Phase III plan developed by then compliance director Gary Maynard and presented it to the New Orleans City Council. The council voted to pass it along to the City Planning Commission, but declined to add an amendment that would have also instructed the commission to research a retrofit option. (The planning commission, however, never considered the 2017 request, because the city did not formally submit a proposal.)
Most recently, in January of 2019, following an announcement that the state would no longer house the detainees at Hunt, the city and jail’s compliance director, Darnley Hodge were instructed to come up with a viable short-term and long-term solution for the care of those detainees at the jail.
The city said that after having alternative plans rejected by the Sheriff’s Office, they agreed to renovate the Temporary Detention Center — another jail facility — as a stop-gap solution to house the detainees coming back from Hunt and work with the other parties “to program, design, and construct a Phase III project that meets the requirements of the Consent Decree, and does so in a cost-effective manner.”
The court ordered them to proceed with that plan in March of 2019, and for over a year the city sent monthly updates to the court on their progress. In June, however, the city abruptly stopped that work, informing the court that it could no longer afford the facility due to a projected $150 million shortfall in recurring revenues due to the economic impacts of the coronavirus pandemic, and that the facility was longer necessary due to a declining jail population.
Phase III would cost an estimated $51 million to construct. Most of that money would come from the Federal Emergency Management Agency — the city argues it would cover around $36 million, while the jail’s compliance director has said that there should be FEMA funds to cover nearly all of it. Still, the city argues that the additional costs necessary to operate a new facility, which they estimate to be around $9.5 million would require cutting “basic city services.” That number has also been disputed by the Sheriff’s Office and the compliance director.
Instead, the city says that retrofitting the second floor of the jail would only cost around $9 million dollars in construction and not require any additional operational costs.
The city has also argued that the court’s order in March was in violation of a federal law known as the Prison Litigation Reform Act, which they say prohibits a federal judge from ordering the construction of a new jail facility.
The legal history of the Phase III concept, and whether or not the city agreed to construct it or was ordered to by the court to do so, was the source of some contentious exchanges between City Attorney Sunni LeBeouf and Magistrate Judge Michael North early on in LeBeouf’s closing argument on Monday.
Throughout the hearing Judge North has pushed back on the idea that the court ordered the construction of a new jail facility — arguing that the city had in fact agreed to the Phase III building multiple times, including in 2017 during Mayor Mitch Landrieu’s administration, and most recently in 2019. And on Monday he brought it up again.
“The city — not the jail, not the court, not the Sheriff’s Office, not the plaintiffs — the City of New Orleans told Judge Africk on February 25, 2019, that it was going to design and construct a Phase III,” North told LeBeouf. “That is a fact. Do you disagree with that?”
LeBeouf said she did not disagree that the city had signed an agreement on that date, she did dispute that it was done so “voluntarily.”
“Whether it was on the record or off the record, the court has always made clear to the city of New Orleans, that Phase III was the court’s preference and with how the city was to proceed,” she said.
That answer did not appear to be satisfactory to North.
“Am I supposed to now go into some kind of mind reading mode and determine based on nothing in the record that the city agreed to do this, but it really didn’t want to agree to do it? That it did it at the point of a sword? That it was doing it involuntarily?” North asked. “I’m supposed to what — am I supposed to take judicial notice of the frame of mind and the individuals representing the city who agreed to do this?”
While the city’s initial motion for permission to suspend Phase III did not provide any alternative options for inmates with mental illness, the city’s lawyers eventually presented three — two that would make the Temporary Detention Center a permanent facility, and one that would retrofit the second floor of the current jail building.
But throughout the hearing, the city focused on the retrofit option — the preferred option of reform groups such as the Vera Institute of Justice and the Orleans Parish Prison Reform Coalition. And on Monday, LeBeouf told the court that the TDC options were not actually viable.
“OK, finally, on this date, I’ve got a statement from the city that those are no longer viable options in terms of a permanent solution,” North said, referring to making TDC a permanent housing unit. “So at least I got that out of this hearing.”
While the city has indicated it would move forward with a retrofit option if relieved from its Phase III obligations, it has also argued that sufficient mental health care is already being provided to inmates at the jail.
Emily Washington, an attorney with the Roderick and Solange MacArthur Justice Center who represents the detainees being held in jail, disputed that claim on Monday.
“Currently, there is not sufficient space in OJC even for the limited programming being provided,” Washington said. “And the monitors have consistently stated for years that space constraints remain one of the largest barriers to providing the consent judgment-required programming and counseling services to people in clinical need.”
“Notably,” she added, “the city’s witnesses on the adequacy of the current care provided are executives for Wellpath — the entity contracted with and paid by the city to deliver medical and mental health care in Orleans jail.”
In his testimony last week, the lead psychiatrist at the jail — former Orleans Parish Coroner Jeffrey Rouse — testified that he would prefer a new jail building, though he noted that his team was currently providing constitutional care for detainees.
There are also practical and financial concerns with moving forward on a retrofit. For instance, the city’s plan for a retrofit requires that there no longer be juveniles held in the facility in order to make space for detainees with mental illness. But Louisiana law gives judges presiding over individual cases discretion over whether or not to move juveniles into adult jails. As of Oct. 7, there were six juveniles being held at the jail, according to an attorney for the Sheriff’s Office.
North said he did not see how a retrofit could work while that was the case.
“No one has explained how that’s a viable option, unless all the juveniles are removed from the jail permanently,” North said.
During the first week of hearings, jail consultant James Austin — who developed plans for the retrofit and previously consulted for the city a decade ago on how best to replace the Orleans Parish Prison complex, the city’s old jail — admitted that having juveniles at the jail would make it difficult.
“It makes it more problematic, because of the special needs, you are hogging so much space for such a small number of people,” Austin said. “I don’t know, it’s a sad situation that you’re in.” He recommended attempting to get a commitment from judges not to send juveniles to the adult jail.
But on Monday, LeBeouf said that a retrofit would still be viable even if there was no guarantee that juveniles would be permanently removed from the facility — although it was unclear what would exactly need to be done to make that the case.
“Dr. Austin specifically responded that that would not be an impediment to the retrofits,” she said. “I think we can all agree that it should not be that one or two youthful offenders should be able to compromise an entire pod of 60 cells at OJC facilities.”
“You don’t want that to be the case, but it is,” North said. “That’s the jail. That’s the jail that we have. And the city has no control over whether one or two juveniles are kept in the jail.”
Another issue is whether or not FEMA funding would cover the costs of a retrofit option. On the second day of hearings, North said that he needed more assurance from the city that FEMA would cover the costs if he was going to approve their request.
Last week, the city offered a letter from FEMA that said the city could apply for project funding for the retrofit, but did not give any indication that it would necessarily be approved.
On Monday, LeBeouf asked that “at a minimum” the city be given more time to actually submit the request to FEMA to find out whether or not it would be approved. She said that a response would be anticipated in 30 to 60 days.
During the first day of the hearing, a rally was held outside of the federal courthouse in support of the city’s effort to halt Phase III. It was organized by the Orleans Parish Prison Reform Coalition, who have long opposed any expansion of the jail, and have celebrated the city’s recent efforts to resist the construction of Phase II.
But OPPRC is not the only group putting pressure on the court to grant the city’s request.
The New Orleans City Council also passed a resolution last month encouraging the city to work on alternatives to Phase III, and earlier this month dozens of health care professionals signed on to a column encouraging alternatives to Phase III and investment in mental health care outside of the criminal justice system.
“By scuttling plans for a new jail, the City has an opportunity to save millions of dollars, while also diverting most of those that suffer mental disabilities away from the criminal justice system and into community-based facilities that provide acute and long-term care,” the column read. “It is a win-win for everyone involved.”
It is unclear to what extent the public opposition to Phase III will impact the decision by the court, but Judge North noted that he had received “hundreds upon hundreds” of emails on the issue. On Monday, LeBeouf asked that those letters from the public be put into the courts record.
“I would ask that those emails be made part of the record because the community has made very clear their desire not to build a new jail building,” LeBeouf said. “The mayor and the City Council have asked not to build a new jail building. And state representatives have asked not to build an in jail building because here presently in Orleans Parish, there are very limited city resources.”
North said that he wouldn’t put the emails in the record — which he noted already consisted of over 1,400 documents — but that he had read them.
“As to the many hundreds of emails that I received, believe it or not, I read them.” North said. “Those emails do consistently state that they are in favor of the city’s position, and urge the court to relieve the city of its obligation to construct this building.”