The New Orleans City Council on Thursday unanimously passed a resolution instructing their lawyers to submit a brief in federal appeals court expressing council members’ opposition to a proposed 89-bed medical and mental health facility — called Phase III — at the city jail, which the city was ordered to build last year by the judge overseeing the jail’s long-running federal consent decree.
Rather than expanding the jail’s footprint with the new building — an option favored by Sheriff Marlin Gusman but opposed by many criminal justice reform advocates and Gusman’s soon-to-be successor, Susan Hutson — the resolution says the council has a “strong preference” for a retrofit of part of the current jail building, which was not designed to accommodate detainees with acute mental health needs. Hutson also plans to file a brief in opposition to the building.
The retrofit plan is favored by Mayor LaToya Cantrell, whose administration has filed an appeal of the 2021 court order with the U.S. Court of Appeals for the 5th Circuit.
A spokesperson for Cantrell declined to comment on the council vote.
The U.S. Department of Justice, which is also a party to the consent decree, and a group of civil rights lawyers representing people incarcerated inside the jail in the consent decree litigation have both come out in favor of Phase III. Thursday’s resolution instructs the council’s lawyers to make a formal request to the Department of Justice to “reconsider” the retrofit option.
But at the meeting, the council also declined to take a vote on a proposed zoning amendment for the retrofit option.
Council members said that while they supported the retrofit, the zoning change to approve it would be meaningless because of the federal court order to move ahead with Phase III. The only way the city can opt for the retrofit — without risking a potential contempt-of-court charge — is if the 5th Circuit overturns the order. The appeals court is scheduled to hear oral arguments on the appeal next month.
Councilwoman Lesli Harris called the zoning change basically “performative” and said it would have ”zero impact on whether or not or when this retrofit will occur.” The deadline to vote on the ordinance was Thursday, so Thursday’s deferral effectively killed it. Should things go the city’s way in court, it’s not clear if the zoning amendment process will have to be restarted. Council members claimed, in the original language of the resolution, that the jail’s current zoning allows for either Phase III or a retrofit. That language, however, was removed on Thursday.*
The city of New Orleans, under then-Mayor Mitch Landrieu, agreed to build Phase III in 2017. And for over a year, Cantrell’s administration was moving forward with pre-construction work on the facility, providing regular updates to the court on their progress. But in June of 2020, the city abruptly halted that work, and lawyers for the administration said that they felt the facility was a waste of taxpayer money. The city filed a motion with the court attempting to back out of their agreement, citing changing conditions such as a lower jail population, improved mental health care, and a decrease in tax revenue.
The move was applauded by a number of criminal justice reform organizations who have long opposed the construction of Phase III or any expansion of the jail beyond its current footprint. But it was opposed by Sheriff Marlin Gusman, along with lawyers for the U.S. Department of Justice,and civil rights attorneys who represent people detained in the jail. They have argued that the current jail does not have the appropriate space to provide care to people with serious mental illness, and that the city’s proposed retrofit plan is not feasible.
After a hearing on the issue, U.S. District Court Judge Lance Africk, ultimately denied the city’s motion in January 2021 and ordered the city to move forward with Phase III. The city has appealed that decision, and oral arguments will be heard by the U.S. 5th Circuit Court of Appeals in March.
In the meantime, the city is again engaged in pre-construction work. In their most recent status report to the court, attorneys for the city indicated that architects were continuing to develop construction documents for submission to the city, and estimated that the facility would be fully built and ready for occupancy by late 2023 or early 2024.
Council won’t take action on zoning
For years both the City Attorney’s office and the City Council have indicated that the council would have to approve a zoning change for the city to move forward with the construction of Phase III. But council members have declined to take deciding votes on any zoning change for a permanent mental health facility at the jail.
In 2020, however, the council approved a stop-gap facility to accommodate detainees with acute mental health needs, at the jail’s Temporary Detention Center. Part of that measure removed a longstanding cap on the jail’s capacity, at 1,438 beds, replacing it with a cap on the number of people who could be incarcerated there at one time. The measure said the temporary facility would be decommissioned upon the completion of a “permanent facility and/or unit.”
The removal of the bed cap, which limited the physical size of the jail, and the inclusion of the word “unit” as an option appears to be what led to council members’ assertion — in the original version of Thursday’s resolution that was published in the council’s agenda on Thursday — that no further zoning adjustments would be necessary for either the retrofit unit or Phase III, a new facility that would increase the physical capacity of the jail. (The final version of the resolution, published in a post-meeting wrap-up email Thursday afternoon, removed the language claiming that neither Phase III nor the retrofit would require a zoning amendment.)
Five of seven council members in office last year were replaced in January, following municipal elections in November and December. The former council in recent months had instructed the City Planning Commission — which studies zoning changes and makes recommendations to the council — to produce hundreds of pages of zoning reports on both Phase III as well as the retrofit.
In early January, the council let a zoning ordinance that had been considered by the planning commission for Phase III expire. Then-Councilman Jay Banks, who lost his reelection bid to Harris late last year, said that while he did not want to take any action that could be interpreted as being in contempt of federal court, he also wouldn’t rubber-stamp an approval for a facility he fundamentally opposed.
Some council members said that even if they could use zoning laws to get in the way of a federal court order, it would set a bad precedent.
“So I assume that the previous council believed that manipulating zoning to prevent a federal edict from going into place was the appropriate thing to do,” said Councilman J.P. Morrell. “Under the eyes of the law, there is no difference between holding up a third phase of the jail using zoning provisions than when people across the state to this day regularly manipulate zoning for affordable housing.”
Councilman Eugene Green said that residents should reach out to “federal officials” to express their opposition to Phase III.
“Get those calls and letters going to the federal level and also even requesting meetings and opportunities,” he said.
That has not worked in the past.
A month before Africk ruled that the city couldn’t get out of its agreement to build Phase III, a federal magistrate judge reviewing the matter admonished the Cantrell administration for appearing to participate in a publicity campaign to pressure the court and attempting to make the decision a political one, warning that the court “does not respond to public shaming or political pressure.”
*Correction: An earlier version of this story reported that the version of the resolution that was passed on Thursday contained language claiming that neither Phase III nor a retrofit would require a zoning amendment. That language appeared in an earlier version of the resolution but was removed prior to Thursday’s vote. (Feb. 3, 2022)