The Orleans Justice Center. (Michael Isaac Stein/The Lens)

A majority of the New Orleans City Council, as well as Orleans Parish Sheriff-elect Susan Hutson, say they intend to file arguments in federal appeals court against the construction of a proposed medical and mental healthcare building on the campus of the city jail, which a federal judge last year ordered the city of New Orleans to build. 

But the same council members have also signaled that they may not take a vote to approve an alternative retrofit proposal on Thursday, arguing that the vote is unnecessary as current jail zoning allows for either a new building or a renovation to move forward. That is despite the fact that the City Attorney’s Office under both Mayor LaToya Cantrell and former Mayor Mitch Landrieu have claimed that their approval is required under the law. 

If the council does not vote on Thursday, the retrofit proposal will expire, and result in a denial. 

Cantrell has long been opposed to the controversial building. And early last year, her administration filed an appeal of the court order with the U.S. Court of Appeals for the 5th Circuit. Oral arguments in the case are scheduled for March. 

A resolution sponsored by five of seven council members, which could go to a vote as early as Thursday, instructs the council’s attorney to file an amicus brief with the appeals court arguing against the facility. 

And Hutson, who campaigned on her opposition to the facility before winning election against Sheriff Marlin Gusman in December, confirmed on Tuesday that she would also be filing an amicus brief with the 5th Circuit on the issue. (Hutson is not set to take over for Gusman, who supports Phase III, until May.) She declined to comment further. 

The council resolution says that should the city be required to move forward with the 89-bed building, the council will move to decommission the same number of detainee beds in the current jail building, the Orleans Justice Center, “to ensure there is no overall increase in population capacity at OJC.” 

Over the several months, city officials have been considering two zoning proposals to provide housing for detainees with acute and subacute medical and mental health needs at the jail. Any zoning change must ultimately be approved by the council to take effect. One, which the council allowed to expire last month, would have allowed for the construction of Phase III. The other, still-active proposal would authorize a retrofit of part of the Orleans Justice Center building as a medical and mental health unit.  

Last year, prior to an election that ended with the replacement of most of the council, members indicated that they were reluctant to take a final vote on either proposal. They were opposed to Phase III, but a vote in favor of a retrofit could be interpreted as going against the federal court order. 

But the resolution scheduled to be heard on Thursday now claims that neither vote is necessary. 

Council members say that the city does not need their approval to move forward with the construction of a controversial 89-bed mental health jail facility, known as Phase III. The resolution says that while the five council members — Helena Moreno, J.P. Morrell, Freddie King, Lesli Harris and Oliver Thomas — are opposed to the construction of Phase III, current zoning law already allows the city to build it, and that it is not “legally necessary” for the council to approve any additional amendments for the new building.

The jail’s zoning would also allow for the retrofit, it says. 

New zoning vote unnecessary, council members claim

Under former Mayor Mitch Landrieu, the city agreed — in court, as part of the long-running federal consent decree over the jail — to build Phase III in 2017. Under Cantrell, architects commissioned for the project were moving ahead with designs until mid-2020, when Cantrell abruptly ordered a stop to the work.  

Attorneys for the city asked U.S. District Court Judge Lance Africk — who is presiding over the consent decree — to nullify the agreement. But in January last year, Africk denied that request and ordered the city to move ahead with the facility. The Cantrell administration quickly moved to appeal the order. 

The City Attorney’s Office, through two mayoral administrations, has argued that the City Council needed to approve a zoning change for the building before construction began.

In 2017, then-City Attorney Rebecca Dietz with Mayor Mitch Landrieu’s administration went before the council and urged members to pass along Phase III plans to the City Planning Commission for review in order to ultimately approve the zoning changes, and warned that they risked being held in contempt of court if they did not. And in federal court, the City Attorney’s Office under Cantrell has held the same position — that they need council approval.

But that’s unnecessary, council members now claim. 

In January 2020, the council passed a zoning amendment that was intended to allow the housing of detainees with serious mental illness in a temporary facility called the Temporary Detention Center. 

That amendment calls for the decommissioning of the temporary building following the completion of a “permanent facility and/or unit,” which the council members sponsoring the new resolution apparently understand as meaning that either a new building or a retrofit is already allowed. (The amendment also repealed a cap on detainee bed capacity that would  have prevented the construction of a new facility without a vote. It was replaced with a cap on the number of detainees allowed inside the jail.) Another provision in the amendment, however, explicitly mentions Phase III. 

The language in the new resolution appears to contradict what the amendment’s sponsor said at the time. Then-Councilman Jay Banks told The Lens in late 2019 that the amendment did not permit a new building or a retrofit.

“To be clear, this legislation does not address the actual Phase III building nor any proposed or possible retrofit,” a December 2019 statement from Banks said. “Those matters were not before us, nor could we legislate those issues within this zoning docket.”

Two zoning proposals

For months, council members have been attempting to navigate their opposition to Phase III and support of a retrofit of the current jail with their obligation to abide by Africk’s order — presumably with the assumption that their approval was necessary for the construction of the facility.  

The City Planning Commission passed along Phase III plans to the City Council in October, without a recommendation for a vote. But the council ultimately decided not to vote on the zoning approval, and instead deferred the issue until the deadline for action passed, effectively killing the zoning change. 

The move was framed by then-Councilmember Banks as a way to avoid “rubber-stamping” something he fundamentally opposed without being held in contempt of court. 

At the request of the council, the CPC in November also considered a zoning amendment that would approve a retrofit of the existing jail building. The executive director of the City Planning Commision told the council in July that he didn’t think a study was necessary because the retrofit option only impacted the interior of a building. But the proposal was considered by city planners and moved to the commission, which voted in November to recommend council approval. The deadline for a vote is Thursday. 

On Tuesday, a coalition of groups — including the ACLU of Louisiana, the Orleans Public Defenders, and the Orleans Parish Prison Reform Coalition — sent a letter to the council urging members “in the strongest terms” to vote in favor of the retrofit plan. 

But based on language in the new resolution opposing Phase III, it appears they will likely defer that vote as well, which will effectively be a denial. If the council’s interpretation of the 2020 zoning change is correct, it is unclear what purpose — if any — either of the CPC studies and recommendations served, or what would have been accomplished even if the council had decided to approve either ordinance. 

If passed on Thursday, the resolution will be the first action the council has taken on the issue since the new members took office in early January. 

While the resolution says the council does not need to take action on the zoning changes, “continue engaging in all legal processes to limit the jail structure and further the City’s goal of safely reducing the jail population in an equitable and fiscally responsible manner,” — including the amicus brief and the capacity reduction at OJC. 

“There are many ways to skin a cat,” said Sade Dumas, executive director of the Orleans Parish Prison Reform Coalition, which has long opposed any jail expansion, in a statement. Dumas said she was “encouraged to see this new City Council look for various possibilities to intervene in litigation and ensure that this jail is not built.” 

“We must seek ways to wisely use public safety resources now more than ever, and creating a jail to cage people with mental illnesses doesn’t fit the bill,” Dumas said. 

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...