Susan Hutson delivers a public comment at Sheriff Marlin Gusman's budget hearing on Tuesday. (Nick Chrastil/The Lens)

Orleans Parish Sheriff Marlin Gusman — who was unable to secure enough votes in Saturday’s municipal primary to avoid a December runoff — faced questioning from New Orleans City Council members and criticism from criminal justice reform advocates as he presented his proposed 2022 budget to the council on Tuesday afternoon. 

His runoff opponent, former Independent Police Monitor Susan Hutson, also made an appearance during the budget hearing, demanding greater budget transparency from the long-time sheriff. 

Meanwhile, Councilman Jay Banks said that he was in favor of deferring a vote on a zoning amendment that would allow for the construction of a controversial, 89-bed mental health jail facility known as Phase III, until the legal deadline for action has passed. That would result in an automatic denial in early January. It is unclear how the move would ultimately impact the construction of the facility, which the city has been ordered to move forward with by a federal judge. Attorneys for the city are currently appealing that order.  

The building has become one of the key issues in the sheriff’s race. Gusman has long advocated for a Phase III — at times arguing that it should hold as many as over 700 beds. Hutson, on the other hand, has aligned herself with criminal justice reform advocates who have mobilized against the facility and anything that would increase the number of beds in the jail. 

Initially scheduled to present last week, prior to the primary election, Gusman cancelled the presentation saying he first needed to meet with a court-appointed budget working group that was set up as part of the jail’s federal consent decree. The move frustrated advocates who showed up to testify at the meeting. (The chairman of the working group told The Lens that the delay was unnecessary.)

But if Gusman was hoping to avoid the budget hearing turning into a political spectacle by winning outright on Saturday, the move failed. Hutson forced him into a runoff, receiving 35 percent of the vote, to Gusman’s 48. A candidate needs more than 50 percent of the vote to avoid a runoff. The two will face off again at the polls on Dec. 11. 

At the presentation on Tuesday, Gusman touted the jail’s response to the COVID-19 pandemic and Hurricane Ida, along with rehabilitative programming offered at the facility, while critics, speaking during the public comment period, blasted the office for alleged lack of transparency in its budget, contracts awarded by the office to contributors to Gusman’s campaign funds (which is controversial but neither illegal nor uncommon), and the fact that a reality TV film crew for the Netflix show “Jailbirds”  was allowed into the facility last year.  

In her public comment, Hutson said OPSO needed to give more information regarding the amount of money spent on lawyers and liability suits against the office.

“There are a number of lawyers on the budget,” Hutson said. “I would love to know how many lawsuits they’re handling. I would love to see some detailed invoices about that. There have been issues about that in the past.” 

Gusman’s proposed 2022 budget provides some details on legal services. It estimates that the agency will spend $105,000 in outside legal costs next year on two firms, both of whom are working on the consent decree. It does not provide details on what cases the firms have or are working on nor their current billing arrangement.

As the administrator of the city’s jail — and a major parish agency — Gusman and his agency are frequent defendants in federal and state lawsuits over contracting disputes, inmate deaths, wrongful imprisonment and other civil rights issues. The office is currently named in more than a dozen open federal lawsuits in New Orleans, court records show. That’s not to mention ongoing legal work in the eight-year-old federal consent decree.

News reports in The Times-Picayune and Fox 8 found that in 2015, the Sheriff’s Office paid out nearly $2 million for legal services with outside firms. Due to the hourly billing arrangement at the time — based on 15-minute work intervals, allowing lawyers to round up significantly for minutes of work — some attorneys were billing for more than 12 hours per day. Records showed that one billed for more than 24 hours in a single day. In 2017, Gusman brought on Blake Arcuri as in-house general counsel as a way to cut down on those contract costs.

Gusman’s proposed budget asks for $40 million in city appropriations for its operating costs — $2.8 million more than Mayor Latoya Cantrell has apportioned in her proposed budget. But Sean Bruno, the Chief Administrative Officer for OPSO, seemed to suggest that the office could make up the difference in “cost savings,” and return to the council mid-year if they determine the need for more funding.  

Councilwoman Kristin Palmer questioned Gusman on why OPSO’s budget wasn’t shrinking in proportion to the jail population, which has declined dramatically over the last several years — particularly since the beginning of the COVID-19 pandemic. She noted that the possibility of reducing costs by shutting down certain sections of the jail was something Gusman used to sell the design of the jail to the council prior to it being built. 

But Gusman said that the number of “fixed costs” at the jail meant that the reductions in population were not necessarily correlated with the reductions in costs, and that utilizing the various areas of the jail was often necessary given different detainee classifications. 

“If we can get to the point where the population is low enough where we can close an  entire floor, I think you would see the sort of reductions in expenditures that I was talking about then,” Gusman said.  

Phase III

The position Councilman Banks took on the Phase III zoning ordinance amendment Tuesday indicated the potential strategy that the council as a whole may take on an issue that has become both politically and legally sensitive.  

All of the current council members have come out against the construction of Phase III, instead favoring a retrofit of the current facility to accommodate detainees with serious mental illness.  But they have also expressed concern that they could be held in contempt of court if they vote against the zoning ordinance that the city says is required to build the facility. 

The city agreed to build the facility back in 2017, but after moving forward in the pre-construction process for over a year, Mayor Latoya Cantrell’s administration abruptly halted it in June of 2020. The city said that given the decreasing jail population and a diminished budget due to the COVID-19 pandemic, the facility was a waste of taxpayer dollars. 

But their attempts to get out of the agreement have been denied by U.S. District Judge Lance Africk, who has determined that the facility is necessary to provide adequate mental health care to the city’s incarcerated population. 

At a status hearing last month, Africk appeared to issue a warning to the council, noting that “throughout history, not complying with federal court orders has not been a successful strategy.” 

Banks said at the meeting on Tuesday that voting on the matter would put him in a position of either voting for something he fundamentally opposes or violating a federal court order that could lead to the city being held in contempt of court. He said that deferring the vote was 

“It’ll be up to the court to order whatever it thinks is appropriate, and to enforce whatever agreements it wants to enforce,” Banks said. “But I will not be enlisted to rubber stamp something that I fundamentally disagree with.” 

After the meeting, Councilman Joe Giarusso, an attorney, told reporters that he agreed with Banks’ that deferral ultimately resulting in denial was the best course of action, saying that he wasn’t sure if the council had any legal authority either way, given that the federal order being enforced by the judge trumps local zoning ordinances. 

“I think what Councilmember Banks is suggesting is the right approach, given that we don’t have authority to take any action,” Giarusso said. 

He also said that he didn’t think that even though continued deferrals would ultimately lead to a denial, the council would risk being held in contempt.

“I don’t think the council has taken an action with respect to what happens by default,” he said.  “And I don’t think based on Councilmember Banks’ comments that there’s been anything saying that we are disregarding a court order. He also went out of his way to say, ‘I don’t want to violate the court.’”

Giarusso said he thought based on the fact that no one else on the council objected to Banks’ position, they were likely on board.

“This group has not been quiet when they disagree,” Giarusso said. 

Gusman, however, did object to Banks’ characterization of Phase III as a jail expansion, which he called “absolutely wrong,”  pointing to the jail bed ordinance passed by the council that excluded detainees with serious mental illness. 

Banks said he respectfully disagreed. 

Dr. Jeffrey Rouse, the jail’s chief psychiatrist and former city coroner, also testified at the meeting in favor of Phase III. Rouse said the facility was necessary in order to provide adequate mental health care but also would provide a “huge level of safety, and not just for the patients, but also for the staff, the deputies.”

Rouse has previously expressed support for Phase III, and has also appeared in a campaign video for Sheriff Gusman’s re-election campaign. 

Meanwhile, the timeline the city has put forth for the completion of the facility blows past a FEMA deadline for funding, which could ultimately leave taxpayers on the hook for the the full cost of the estimated $51 million construction costs of the facility — losing out on an anticipated $39 million of funding.

Whether or not the potential deferrals by the council will delay the construction timeline further is unclear.

Nick 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...