A New Orleans City Council committee advanced one measure and discussed another on Tuesday that were both aimed at avoiding a federal court order to construct a new jail facility to house detainees with serious mental illness — a project known as Phase III.
The council voted to advance a motion directing the City Planning Commission to study an alternative “retrofit” option to Phase III that would renovate existing space in the current jail building for just $9 million, rather than constructing an entirely new building for $51 million — about $39 million of which would be covered by FEMA funds.
The retrofit plan has been recently championed by Mayor LaToya Cantrell, the City Council and some local criminal justice reform advocates.
But because the city’s jail has been under a federal consent decree since 2013, the decision isn’t solely up to the city government. And other parties in the consent decree litigation — including the Orleans Parish Sheriff’s Office, the United States Department of Justice and civil rights lawyers representing the plaintiff class of people detained in the jail — have argued that the retrofit option isn’t a viable alternative.
U.S. District Judge Lance Africk, who oversees the consent decree litigation, has agreed with those parties, and ruled repeatedly that the city must move forward with Phase III.
“Judge Africk has pretty much indicated he’s only going to accept Phase III,” James Austin, a jail consultant who developed plans for the retrofit option, told council members on Tuesday. “It would be a big deal if Judge Africk said he was open to other options.”
Austin said that if all the parties came to an agreement on an alternative, Africk would likely have a change of heart. To that end, the council discussed a resolution to ask the City Attorney to request a status conference with the court overseeing the consent decree in an attempt to find consensus on an alternative to Phase III. The committee didn’t actually take a vote on the resolution, however, in part due to concerns from the public that the council was backing off its commitment to the retrofit option. Councilman Joe Giarrusso, who introduced the resolution, said he would be adding amendments to allay those concerns before it was considered by the full council.
The committee did vote on and advance the other motion considered on Tuesday — asking the City Planning Commission to study the retrofit option. But even if that’s approved by the full council, it’s unclear whether it would have any effect on Africk’s ruling or the city’s legal obligation to construct Phase III.
In a letter read during Tuesday’s meeting, the executive director of the City Planning Commission, Robert Rivers, told the council that he didn’t think a study was necessary and that the retrofit option could likely be completed without any zoning changes.
The letter noted that the City Planning Commission, or CPC, deals with zoning issues, which are governed by the city’s Comprehensive Zoning Ordinance. Rivers said that since the retrofit option only affected the interior of the building, it was likely the plan would fit within current zoning laws and that there wouldn’t be any need for a review from the CPC or a zoning amendment that would need approval from the City Council.
“This is in no way intended to dismiss the important criminal justice issues and legitimate policy concerns involved in this matter, just to underscore the Comprehensive Zoning Ordinance is not necessarily the most effective tool to address them,” the letter said. “A retrofit option would not require any exterior changes, only interior changes, and would not change the existing land use for the purposes of zoning and would not change the population limitations. If that is the case, a retrofit would likely not require an amendment.”
The CPC is currently studying Phase III plans submitted earlier this year. That issue is set to come up at the CPC’s August 24 meeting. The city has said that based on the results of that study, the council will likely need to approve zoning amendments to allow Phase III to be completed.
The letter from Rivers also said that the CPC wouldn’t be able to place the retrofit study on its meeting docket before there was a more comprehensive plan.
“Amendments initiated by the city council require a complete application,” the letter said. “As I understand it, no such plans currently exist for a retrofit option, so we can’t docket the motion until such plans be submitted.”
The resolution had the support of one of the city’s most prominent opponents to Phase III — the Orleans Parish Prison Reform Coalition. Lexi Peterson-Burge, the group’s deputy director, told The Lens that they supported any and all opportunities for the public to weigh in on the potential jail expansion. She also pointed out that although River’s letter said the retrofit option likely wouldn’t require CPC study or zoning amendments, it was still possible it could.
Councilwoman Kristen Palmer said there was enough public interest in the idea to move forward, and the motion was approved in a 5-0 vote.
“Some people might say it’s moot, some people might not see the value it,” Palmer said. “I feel like there’s enough interest in this.”
The 2013 Consent Decree
When the city’s jail entered the federal consent decree in 2013, one of the myriad problems raised by the US Department of Justice was the jail’s handling of people with mental illness. Starting in 2017, under former Mayor Mitch Landrieu, the city agreed that the solution to that problem would be the Phase III expansion.
Landrieu went back and forth on a new jail facility during his time in office — at times pushing for a retrofit alternative — before eventually agreeing to the Phase III plan put forward by then jail compliance director Gary Maynard in 2017.
At a contentious City Council meeting that year, the city urged the council to pass a motion that would instruct the City Planning Commission to study the Phase III plan — a necessary first step in the process of passing a zoning ordinance necessary to begin construction on the facility.
Then-Councilwoman LaToya Cantrell, along with Councilwoman Susan Guidry, pushed for an amendment that would have instructed the City Planning Commission to study a retrofit as well. Then-City Attorney Rebecca Dietz, however, warned that the council could be held in contempt of court if they did not move forward with Maynard’s plan. The amendment was not adopted, and Cantrell ended up voting against the motion. She was the only one to do so.
“Here we are talking about only looking at one option when we owe it to our people to look at all options, all alternatives before coming to a conclusion,” she said at the time. “If we are not willing to put all options forward then there’s no way I will be supportive of voting for this facility of 89 beds.”
A lot has changed since 2017. Cantrell is now the Mayor. And as Austin noted, the city’s jail population has been roughly cut in half since then, down to just 823 people.
“If you had a population like you have today you’d never think of building a bigger building,” Austin said. “All these buildings are about half full right now.”
In June 2020, Cantrell’s administration filed a motion with the court saying that the changing circumstances made Phase III unnecessary, and that the ongoing coronavirus pandemic and economic crisis made the plan financially infeasible. The city has been fighting with the court since then to get out of the Phase III plan, but has made little progress convincing Africk so far.
Opponents of the retrofit say that the current jail building has structural deficiencies that couldn’t be easily solved by a retrofit, including line-of-sight issues for guards and medical staff, and lack of space for counseling rooms. The second floor of the jail also has a mezzanine that could be utilized by detainees who want to harm themselves. Magistrate Judge Michael B. North, who handles many of the litigation proceedings for U.S. District Judge Lance Africk, said that the retrofit plan presented by Austin during the hearings last year was “not a viable option in any way, shape, or form.”
The jail’s consent decree monitors have also said that they feel Phase III is necessary for bringing the mental health care at the jail into compliance.