From December 2019, a handcuffed man is led toward the New Orleans jail. (Michael Isaac Stein/The Lens)

The New Orleans City Planning commission declined to make a recommendation to the New Orleans City Council on a zoning change that would allow for the construction of a controversial 89-bed jail facility known as Phase III that would be used to house detainees with acute mental illness. 

The facility has been the subject of ongoing litigation in federal court under the jail’s consent decree, and the focus of criminal justice reform groups who oppose it’s construction on the grounds that it would contribute to the criminalization of mental illness in the city.  

While Mayor Latoya Cantrell’s administration is now opposed to constructing the facility, a federal judge — presiding over the jail’s long-running federal consent decree — has ordered the city to honor a previous agreement and move forward with its construction. That required the city to bring the application for a zoning change to the City Planning Commission. 

The City Planning Commission staff recommended last week that the zoning change be approved, but said that they were strictly assessing the application as a land use matter, not criminal justice policy. 

But the eight commissioners present at a Tuesday meeting failed to reach a consensus on the change. Though a vote to recommend the council deny the zoning change failed 5-3, a separate vote to recommend the council approve the staff report came out 4-4. 

Much of the conversation regarding the Phase III application by the commission on Tuesday had to do with what the scope of their responsibility is. Bob Rivers, the executive director of the planning commission, said his staff had assessed the application “to take recognition of all those other issues” — such as impacts on the incarcerated population, mental health care in the city, and cost — but that from his perspective “they fall outside of the zoning ordinance.”

But other commissioners said that it was within the scope of their duties to consider how the construction of the facility would impact the city as a whole. 

“For me, it does come down to meaningful land use impact, including likelihood of impacting not just the quality of life for people around the facility, but in this case, the city in general,” said Commissioner Kathleen Lunn. 

Commissioner Sue Mobley agreed. 

“While I appreciate the precision of the staff in the application of land use standards, the charge of this commission is to promote the public health, safety, and welfare of the New Orleans community, not solely to look at what is allowable,” she said. 

Others, however, said that while they were sensitive to concerns around the incarceration of people with mental illness, the commission should defer to the court and the City Council on the issue. 

“I certainly share the concerns of the issue of incarceration of those who have mental health conditions,” said Commissioner Kelly Brown. “But I believe that by prohibiting something through land use action that we are under a court order to do takes off the table our good faith effort to present alternatives to the court.”

In August, the City Council passed a motion advising the planning commission to consider a retrofit of the current jail — which is the preferred alternative of the city. Lance Africk, the federal judge overseeing the consent decree, however, has called the proposal infeasible. 

The commission limited the number of public comments read to 20 on each side of the issue. But there were none in favor of building Phase III. 

“I firmly oppose the construction of a Phase III psychiatric facility because people with severe mental illness are over-criminalized throughout the country, particularly in New Orleans,” one commenter wrote. “We need to focus on rehabilitation not criminalization. If we put the money towards community based programs rather than building a new facility, both those who are in need of help and the taxpayers of New Orleans will benefit.”

The Phase III facility is subject to an ongoing dispute under the federal consent decree, approved in 2013 and meant to bring the jail — which for years was plagued by violence and notorious for substandard care of detainees — up to constitutional standards. 

After agreeing to build it and providing updates to the court for over a year on its pre-construction progress, the city abruptly halted work in June of last year, to the frustration of the court and the other parties to the consent agreement — including the Orleans Parish Sheriff’s Office, the United States Department of Justice, and civil rights attorneys representing people incarcerated at the jail. In a court filing, the city asked the judge to allow it to abandon the facility, arguing it was too expensive given budget constraints caused by the COVID-19 pandemic, along with the declining jail population and improved mental health care at the existing jail. 

The other parties opposed the city’s request, and after months of written arguments and a nearly week-long hearing on the issue, Africk denied the city’s request and ordered the Cantrell administration to move forward. That decision is currently being appealed by the city.

Phase III opponents argue that investing in a new facility to treat mental health in the jail is contributing to the criminalization of mental illness, and that the city should instead spend money on resources to provide mental health treatment outside of the criminal legal system. For the people who do end up in jail and need treatment, advocates have suggested that a portion of the current jail can be retrofitted to accommodate them.

The other parties in the consent decree, however, say that the facility is necessary to provide the proper infrastructure to treat people in the jail. The court appointed monitors tracking the jails compliance with the consent decree agree, and in a recent report called Phase III  “an important part of the long-term solution to the lack of compliance with the Consent Judgment in the areas of medical and mental health.” 

What will happen if the City Council does not approve the zoning change the city says are required to build Phase III is not clear. 

When the city initially agreed to move forward with the Phase III facility under the Landrieu administration, it began the process of making the necessary zoning changes. In a contentious hearing in 2017, the New Orleans City Council voted to have the Planning Commission consider plans for Phase III. (Plans for the building were not sent to the commission at the time, stalling the process until recently.)

Then-City Attorney Rebecca Dietz warned that if the council did not move on the issue — and even if they asked the commission to consider an alternative retrofit proposal — they risked being held in contempt of court by the federal judge. That could potentially result in fines against the city, or City Council members being thrown in jail themselves. 

In early August of this year, attorneys for the jail detainees and the U.S. The Department of Justice requested the court hold a status conference with members of the New Orleans City Council, ahead of a planned August 24 City Planning Commission meeting, when the Phase III issue was originally scheduled to be heard. (It was later pushed back to this week.) They argued that the city was not providing enough information in their regular status reports regarding progress on Phase III.

Africk granted the motion for the status conference, but initially scheduled it for Sept. 21. He invited, but did not order, City Council members to attend. That meeting was delayed again after the city requested a continuance, citing Hurricane Ida. It is now scheduled for Nov. 3. 

Sade Dumas, director of the Orleans Parish Reform Coalition, who oppose the Phase III facility, said in a statement that the vote wasn’t everything the organization had hoped for, but that they were “encouraged by the Commission’s recognition that recommending a larger jail complex in New Orleans would hurt the fabric of our community.”

“This decision is now fully up to the New Orleans City Council, and we urge them to listen to the needs of the people they represent, both those on the inside and outside of  the jail’s walls,” she said.

Nicholas 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...