Orleans Parish Sheriff-elect Susan Hutson is arguing in a federal appeals court filing that her election in December should put a pause on a proposed, and highly controversial new medical and mental health jail building known as Phase IIi. 

Hutson defeated current sheriff Marlin Gusman in a run-off election in December after a contentious campaign during which she made her opposition to the 89-bed facility a central issue. 

Mayor LaToya Cantrell’s administration is not interested in building Phase III. In 2020, it requested to get out of an agreement made by Cantrell’s predecessor, Mitch Landrieu, to build it. But U.S. District Court Judge Lance Africk, who is presiding over a long-running federal consent decree meant to bring the troubled jail up to constitutional standards, ruled against Cantrell early last year. Cantrell is appealing the order to the U.S. Court of Appeals for the 5th Circuit.

Gusman has been arguing in favor of a new facility for nearly a decade and has been part of the ongoing legal fight. Hutson, on the other hand, ran for the office in part on her opposition. And on Friday, her attorneys submitted a brief in the appeal saying that she shouldn’t have to live with it as sheriff. 

“If the District Court’s order is affirmed, Sheriff-Elect Hutson will become the ‘keeper’ of a new jail she—as well as a majority of the voters in the run-off election— fundamentally opposes building,” Hutson’s attorneys wrote.

But Hutson doesn’t actually take office until May. In the meantime, the United States 5th Circuit Court of Appeals will hear oral arguments on the appeal next month. 

Because she has not taken office yet, Hutson is not a party to the consent decree lawsuit. But the appellate court granted her request to file an “amicus curiae” brief  — or “friend of the court” brief — in support of the city’s appeal. 

Lawyers with the MacArthur Justice Center, who represent jail detainees in the consent decree litigation, objected to the court allowing Hutson to file her brief, calling it “woefully untimely.” They cited federal appellate rules that dictate an amicus brief be filed within seven days of the “principal brief of the party being supported,” in this case the city. Lawyers representing the city filed the principal brief in April of last year — nearly 10 months ago.

Hutson said that when she takes office, she will implement reforms that will bring the provision of mental health care in line with the consent decree, making the Phase III facility unnecessary. 

In ordering the city to move forward with construction of the failcity, lawyers for Hutson accused the district court of attempting to “micromanage Orleans Parish’s prison system,” and said that the court  “impinged on the public interest when it bound successor government officials, including Sheriff-Elect Hutson” who are opposed to Phase III.  

What led to the appeal 

Nearly everyone agrees that the main jail building in New Orleans, called the Orleans Justice Center, does not have the proper infrastructure to house detainees with acute and subacute mental illness.  

When the City Council approved the construction of the current jail, it mandated that it be able to house any type of detainee except those “that require acute mental health treatment.”  And when Gusman built the jail, it did not have space for those detainees — to the frustration of civil rights lawyers representing detainees at the jail and United States Department of Justice.

For years, people arrested in New Orleans who were in need of acute mental illness were sent to a prison in St. Gabriel, Louisiana through a contract with the state. But in late 2018, the state told jail officials that it wanted to end the contract. And those detainees have since been moved back to New Orleans. They are currently being held in the Temporary Detention Center, a facility that was built after Hurricane Katrina and which is set to be decommissioned under city ordinance once a more permanent solution for housing the detainees is complete. 

In anticipation of the contract ending with the state, Africk ordered the city to move forward with Phase III. And for over a year, they did, providing regular updates to the court on their pre-construction progress. But in June 2020, months after the start of the coronavirus pandemic, the city abruptly halted that work. They argued that changed circumstances — including a decrease in tax revenue due to the pandemic, a dramatically lowered jail population, and improved mental health care at the facility — made the facility unnecessary and too financially burdensome. 

The city has estimated that the cost of constructing Phase III will cost around $51 million, with around $37 million covered by FEMA funds. In addition, they say the facility will increase OPSO’s operating costs by around $9 million. Gusman has disputed that claim. 

The city has argued that the court should instead allow them to retrofit a floor of the existing jail, which they say would allow for sufficient care and would be significantly cheaper. That plan is opposed by all other consent decree parties — Gusman MacArthur and the United States Department of Justice —  who have called it unfeasible. 

In her filing, Hutson reiterated many of the same arguments the city has been making in opposition to the facility, including that it is too expensive given a decline in tax revenue due to the coronavirus pandemic, and a declining jail population makes it unnecessary. 

But Hutson also said that her election and the reforms she plans to implement — including “hiring additional OPSO staff, redeploying existing staff, working to reduce the jail population, and retrofitting the current OJC” —  are further reasons why the judge’s order should be overturned and the city should not be required to build Phase III.

“These reforms will achieve compliance with the Consent Judgment more quickly, cheaply, and effectively than constructing a brand-new, extremely costly, and unnecessary jail, which is not the least-intrusive means,” Hutson’s lawyers wrote. 

State and local laws

In addition, lawyers for Hutson argued that the New Orleans City Council is required to take a number of votes before Phase III can be legally built — which they so far have not taken. By telling the city to move forward with the construction prior to those actions by the council, they wrote, the district court orders to build Phase III “improperly circumvent and disregard” the city’s home rule charter and the Louisiana constitution.

Under those provisions, the lawyers argue, the New Orleans City Council must allocate money in the capital budget and approve zoning changes, along with a cooperative endeavor agreement between the city and the Sheriff’s Office for a new jail facility to be built. So far, the Council has not approved any of those things.

“The District Court erred in ordering the City to construct a new jail (or even merely ordering it to comply with an alleged prior agreement) when the City (i.e., its executive branch) does not have the

authority, on its own, to do so,” Hutson’s lawyers wrote. 

New Orleans City Council members have been attempting to balance their expressed opposition for Phase III with the federal court orders and the possibility of being held in contempt. In January, the council let a zoning ordinance that would have allowed the construction of Phase III expire, and it was therefore denied.

Earlier this month, the City Council passed a resolution saying that they oppose the construction of Phase III and prefer a retrofit option — one of several similar resolutions passed by the council in recent years. The resolution also instructed attorneys for the council to file their own amicus brief with the appellate court. At the same time, council members declined to approve zoning changes for a retrofit option, indicating that the council had no desire to go against court orders by approving or denying zoning ordinances. 

But it is unclear whether or not the council believes it is still required to approve a zoning change for Phase III. An early draft of the Phase III opposition resolution by the council said that zoning changes were not “legally necessary” for either Phase III or the retrofit — seeming to contradict a position held by the city for years, and the one put forward by Hutson in her Friday filing. But that language was taken out of the resolution prior to it’s passage.

According to a status report filed by the city last week in district court, the CEA between the Sheriff and the City to construct Phase III has been completed and submitted to the Council for approval, but no ordinance to authorize the mayor to sign it has been introduced. 

Hutson’s brief also pointed to a 1995 federal law called the Prison Litigation Reform Act, that prohibits judges from ordering municipalities from building jails or prisons. It is a provision the city has repeatedly brought up throughout the litigation. 

But the district court judges countered that they have never ordered the city to build a new jail facility. Instead, they ordered the city to come up with a solution to house people in need of acute mental health care, and the city has repeatedly agreed that the solution would be Phase III. The orders were only instructing the city to follow through with their prior commitment. 

Lawyers for Hutson said that was a distinction without a difference, calling the district court’s reasoning a “judicial ‘workaround’” that undermined the intent of the law. 

“The District Court ordered indirectly that which it plainly could not order directly,” they wrote.