As attorneys for the city of New Orleans attempt to convince a federal judge to let them retrofit a floor of the New Orleans jail instead of building a new facility known as Phase III, an obstacle has emerged: juveniles being held at the adult jail.
Advocates and researchers have long warned that keeping juveniles in adult facilities increases their risk of physical and sexual assault, and have a higher likelihood of dying by suicide. (In 2016, Jaquin Thomas, a 15 year-old being held at the New Orleans adult jail died after he hanged himself in his cell.) And the city has passed several ordinances dictating that the youth jail — now called the Juvenile Justice Intervention Center (JJIC) — is the appropriate place to house juveniles being charged as adults.
As of Friday, there were three juveniles being held in the adult jail, according to an attorney for the Orleans Parish Sheriff’s Office, Blake Arcuri. And aside from the safety and ethical concerns of holding juveniles in the adult jail, it is causing complications for the city in its attempt to avoid building Phase III. Under federal law, juveniles in an adult jail must be kept separate from the rest of the jail population. And due the space constraints in the jail, there are questions over whether the city’s current plan to retrofit the jail would be possible if juveniles continue to be held at the facility.
Legally, it’s not up to the city whether or not juveniles are transferred to the adult jail. The Louisiana Children’s Code gives that authority to the judge presiding over their cases. In reality, however, the city is often involved in the decision.
Mayor LaToya Cantrell’s administration itself has not always been committed to keeping juveniles out of the adult jail. Just last year, in response to an increase in car burglaries attributed to juveniles, Cantrell called for tougher enforcement of juvenile curfew laws, leading to overcrowding at the juvenile facility. In response, Cantrell pushed to have offenders being charged as adults moved from the juvenile facility to a “more appropriate facility” — presumably referring to the adult jail.
Tenisha Stevens, the Cantrell administrations criminal justice commissioner, said last year that “in instances where juveniles have been charged as adults, when they have committed serious violent offenses such as murder, when their presence or behavior could create a disruption or a danger to other juveniles or to staff — absolutely it is appropriate for them to be housed in the juvenile wing of Sheriff Gusman’s facility, which is a more high-security facility.”
Cantrell’s 2019 stance was itself an apparent reversal. On the city council, she voted in favor of the two ordinances in 2015 and 2018 that designated the juvenile facility the appropriate place to house juveniles charged as adults.
And now, a spokesperson for the mayor’s office said that the city will no longer request transfers of youth to the adult jail —citing a recently built wing of the juvenile facility that will provide enough space for juveniles charged as adults.
When questioned about the issue of whether a retrofit was possible if juveniles were still in the adult jail at a federal court hearing last month, James Austin, a consultant for the city who designed the retrofit plan, had a suggestion for how to get around the problem: go to the judges at Orleans Parish Criminal District Court, and ask them to commit to not sending juveniles to the adult jail.
Deferring to the executive branch
It’s unclear whether — or when — city officials explicitly went to the judges and asked them to make the commitment to stop signing off on transfers of juveniles to the adult facility. But last week, Chief Criminal District Court Judge Karen Herman sent a letter to New Orleans City Attorney Sunni LeBeouf in hopes of clarifying the court’s position on the issue of juveniles at OJC.
In it, Herman declined to commit to stop sending youth to the adult jail, saying that the judges would instead “defer to the executive branch” when making decisions about where to hold juveniles.
“As a general principle, judicial officers defer to the executive branch on matters of incarceration placement,” the letter reads. “Those who are in charge of the custodial environment whether it be the Orleans Justice Center (OJC) or the Juvenile Justice Intervention Center, are in the best position to ascertain the most appropriate housing decision for the offender. The agency representatives are aware of the existence of custodial infractions and violations, the ability of the juvenile to follow confinement rules, and whether that particular juvenile poses a threat to other juvenile offenders.”
While discretion over which juveniles get sent to adult jails ultimately resides with the judge, the Mayor’s office can make requests — sometimes through the DAs office — as they did last year in the case of two juveniles following an incident in the juvenile jail.
The letter from Herman also goes on to note that it is their understanding that JJIC has “more than adequate bedspace to house all juvenile offenders that are presently in the system as pre-trial detainees.”
“If this custodial environment has been deemed an appropriate one for housing by the Juvenile Justice Intervention Center authorities, then our court would certainly accord great weight to this determination,” the judges wrote. “We hope this letter serves to clarify The Court’s position.”
Despite the lack of a clear commitment to stop sending youth to the adult jail, City Attorney Sunni LeBeouf said in a statement that the city was “pleased that our Criminal Court Judges have acknowledged they will defer to the Executive branch on matters of incarceration placement.”
“The City has invested an additional $17M in the expansion of our Juvenile Justice Intervention Center to provide appropriate housing for youthful offenders outside of the Orleans Justice Center,” she said. “With continuing partnership with our Judges and stakeholders, the City is confident that all matters regarding youthful offenders will be appropriately addressed.”
She also noted that JJIC has “more than adequate space” to house juvenile offenders and pointed to city code that establishes the facility as the appropriate place to hold youth being charged as adults.
LeBeouf has argued that the retrofit plan is still being developed, and could be modified to include space for youth being charged as adults if necessary.
Rachel Gassert, policy director at the Louisiana Center for Children’s Rights — an organization that acts as the public defender for juveniles accused of crimes in Orleans Parish — took an even more optimistic approach to the the letter, saying that it was “inevitable” that juvenile incarceration the adult jail in New Orleans would come to an end, and that Phase III was not necessary.
“The city has made a commitment to keep kids in the juvenile facility, and the judges say that if the city does not request it, they see no reason to move a child to OJC,” she said. “We encourage the mayor and judges to formalize this agreement, but it’s clear we have all the pieces in place to get kids out of the adult jail immediately and permanently, further rendering Phase III unnecessary.”
Arcuri with the Sheriff’s Office said that he wasn’t sure a formal agreement from the judges not to send juvenile’s
“I don’t even think it’s possible for them to do an en banc order agreeing to not transfer juveniles — I don’t think that’s even legal,” Arcuri said. “They leave the discretion up to the judges, but then you have to exercise discretion or you abuse your discretion.”
Chief Judge Karen Herman, and the Judicial Administrator, Rob Kazick, did not respond to requests for comment.
How, or if, uncertainty about juveniles will affect the Phase III decision and the possibility of a retrofit is unclear. In the federal hearing last month, which lasted more than a week, the city presented its argument for why it shouldn’t have to build Phase III.
Budget constraints due to the coronavirus pandemic, the declining jail population, and improved mental healthcare at the jail were all reasons why a new facility was unfeasible and unnecessary, they said. They also argued that the retrofit plan developed by Austin would fix the structural deficiencies of the current jail, and be more cost-efficient.
During the closing arguments of that hearing, however, federal Magistrate judge Michael North expressed concern over whether or not the retrofit would be viable if there were going to be juveniles held in the facility.
“I don’t see that that’s a viable option if they’re juveniles in the jail,” Judge North said of the retrofit during closing arguments. “No one has explained how that’s a viable option, unless all the juveniles are removed from the jail permanently.”
In post-hearing briefs, filed last week, attorneys for the United States Department of Justice and for the plaintiffs representing people incarcerated at the jail also brought up the issue of juveniles in the jail as a potential shortfall of the retrofit plan, saying that the plan “did not examine classification requirements.”
But in their own filing, lawyers for the city dismissed those concerns.
“While the youthful offender population has been presented as a purported reason why a retrofit is not feasible, this dubious argument falls flat,” they wrote. “OPSO currently has approximately two youthful offenders in custody, with even that very limited number expected to dwindle (down to zero) shortly.”
“The City of New Orleans cannot and should not be forced to build a new jail building to accommodate at most two (2) youthful offenders when the City has invested in a $17 million expansion of the Juvenile Justice Intervention Center (JJIC), with twenty-eight beds available, for this very purpose.”
Jon Wool, former executive director of the Vera Institute of Justice, said that the city has made clear that it does not want juveniles being held in the adult jail.
“The city took direct action to settle the matter of where detained juveniles should be housed and determined it should be JJIC and only JJIC,” he said. “That is why they went forward and built a new 28-bed wing just for that purpose. In the very near future, we will see a permanent end to the housing of children in the jail.”