The city of New Orleans should not be allowed to halt work on a controversial new jail facility — known as Phase III — pending an appeal of a federal court order to build it, a federal magistrate judge recommended in a Thursday court filing. Meanwhile, at a virtual community meeting and presentation from the facility’s architects on Thursday evening, community members expressed their opposition to the new building.
The recommendation by the magistrate is the latest in a series of harsh rulings denying attempts by Mayor LaToya Cantrell’s administration to avoid building the Phase III facility — which will primarily be used to house detainees with acute and sub-acute mental illness. The city has argued that the facility is not necessary due to a declining jail population, improved mental health care in the jail, and the fact that it would be too financially burdensome given the economic impacts of the coronavirus pandemic.
The dispute falls under a federal consent decree meant to bring historically dismal jail conditions up to standards in line with the United States Constitution. Other parties in the litigation — including the United States Department of Justice, the Orleans Parish Sheriff’s Office, and civil rights attorneys representing people incarcerated in the jail, have argued that the facility is necessary to provide adequate care for detainees. The current jail building, they argue, is designed in such a way that makes it impossible.
After years of back and forth on Phase III — including an agreement by the city in 2017 to build the facility — Judge Lance Africk, who is presiding over the consent decree case, ordered the city to move forward with construction in January. The city has appealed that order, and in April, asked the court for a stay on the order, which would allow it to stop work on the building while the appeal is in process.
In his recommendation, Magistrate Judge Michael B. North said the request for a stay was “simply not procedurally available to the City, given the manner in which they originally moved for relief.” Africk will ultimately rule on whether to grant the stay.
Previously, North has expressed frustration with the city’s legal arguments against Phase III — which it had previously agreed to build. In a December report on the matter, he said he had “lost trust” in the city as a litigant. The ruling on Thursday was similarly dismissive of the city’s most recent attempt to halt construction.
“True to recent form, the City has managed to turn what would normally be a simple procedural question into a tangled knot of ill-conceived, ad hoc arguments, the unraveling of which becomes more and more difficult every time the City files a new brief or its lawyers speak out loud on the record,” North wrote in this week’s recommendation.
He also wrote that the importance of providing constitutional care to people in the jail “continues to evade the City and its attorneys.”
“Nowhere will any reader find in the City’s briefs an acknowledgement of (1) inmates’ rights to be housed and treated in a constitutional fashion and/or (2) any concern whatsoever by the City directed at solving a problem that the Court and every qualified professional in this case say is both enduring and dire,” North wrote. “What we continue to get from the City is a litany of justifications for not doing the right thing, i.e., building a special-needs facility.”
Former U.S. Attorney Harry Rosenberg, an outside counsel representing the city in the case, wrote in a statement that the city “strongly disagrees” with the “commentary” in the report.
“Foremost, this report fails to provide the residents of New Orleans with all of the salient facts,” Rosenberg said. “And it wrongly suggests the City is not sensitive to the constitutional care and housing of inmates in the Orleans Justice Center. The City’s focus has been consistent with what Congress decided, namely, that local elected officials, who are responsive to the taxpayers, are better equipped than federal courts in making decisions that impact public safety, the police and fire departments, EMS, as well as the care of incarcerated individuals.”
He also pointed out that the “number of incarcerated individuals in New Orleans has sizably decreased through efforts by a broad cross-section of local and state officials and grants designed to heed the national trend of avoiding mass incarceration.”
North said in his recommendation that because the city was procedurally barred from a stay, he did not need to address the merits of its claims regarding whether or not it is likely to be successful in its appeal.
The city will have an opportunity to file objections to North’s recommendation within the next two weeks, after which Africk will make a ruling.
Also on Thursday, the architects of Phase III, along with representatives from the Sheriff’s Office and the jail’s psychiatric staff, presented plans in a virtual community meeting on the new facility and fielded questions from the public. The meeting was required as part of the process the city must go through to have a zoning ordinance approved for Phase III by the New Orleans City Council.
Many people who attended the meeting and who submitted questions via email expressed opposition to the new building, arguing that there was sufficient space in the current jail to treat people with mental illness — and that those people should be treated in a secure hospital as opposed to a jail anyway.
Former New Orleans Coroner Dr. Jeffrey Rouse — now a psychiatrist with Tulane who serves as the jail’s lead psychiatrist in partnership with the jail’s healthcare provider, Wellpath — said that no one who was “sane or rational” would consider a jail the ideal place to treat mental illness. But he said that it wasn’t up to the Sheriff’s Office or the jail’s medical staff who gets sent to them.
“I will be the first to admit that I don’t want to see the criminalization of the mentally ill,” Rouse said. “But the bottom line is that sometimes people get arrested. And that doesn’t change whether or not they need care, or deserve evaluation and deserve treatment. So that’s what we try to do on the inside. But, you know, the medical staff and the sheriff staff, you know, we don’t control the front door, and we don’t control the exit for the most part. That’s all I can pretty much say on that.”
