Lawyers for the city of New Orleans and Orleans Parish Sheriff-elect Susan Hutson on Monday took their case against building a controversial jail medical and mental-health facility — known as Phase III — before a seemingly skeptical panel of federal appeals court judges. 

In June, 2020, Mayor LaToya Cantrell’s administration abruptly halted pre-construction work on Phase III, after more than a year of regular updates to a federal judge overseeing the jail as part of a nearly nine-year-old federal consent decree. Early last year, the judge denied a request  from the administration to rescind earlier orders — based on agreements made by the city under Cantrell’s predecessor, Mayor Mitch Landrieu — to move forward with the facility. The city is appealing that decision. 

At issue before the appeals court is whether the initial orders violated federal law and whether the judge properly took into account changing circumstances, such as a sharply decreased jail population and a city budget strained by the COVID-19 pandemic. 

The city is the lone party to the consent decree that is opposed to Phase III. Orleans Parish Sheriff Marlin Gusman, along with the United States Department of Justice and civil rights attorneys representing detainees in the jail, argue that Phase III is necessary to provide adequate medical and mental health care to people incarcerated in New Orleans. But criminal justice reform advocates have long opposed a new building — instead arguing that a portion of the current jail could be retrofitted to provide care. It is an argument the city has now taken up as well. 

Representing the city, Harry Rosenberg opened his arguments by citing what he said was a national political shift away from jail expansion and the use of correctional facilities as mental health hospitals. 

“The district court appears to be in a time warp over the last 9 years,” Rosenberg said, adding that the order by District Court Judge Lance Africk, who is presiding over the consent decree, was “just anathema to national policies, period.” 

Rosenberg then got into his legal points, which were frequently challenged by 5th Circuit Court of Appeals Judge Rhesa Barksdale. 

Prison Litigation Reform Act

Rosenberg said that Africk’s order violated the federal Prison Litigation Reform Act because the law prohibits federal judges from ordering the construction of a jail building. That’s an argument the city has made since mid-2020. But it’s one that the other parties, as well as Magistrate Judge Michael North —  who in December 2020 issued a scathing report recommending Africk deny the city’s attempts to get out of building Phase III — say has no legal weight. Africk based his order on North’s report. 

North and the other parties maintain that the city was never ordered to build a jail facility. It was merely ordered to honor its own legal agreements.  And the city has only brought up the issue of the PLRA over the past year and a half, but the origins of the dispute date back nearly a decade. 

In 2013, the DOJ and the detainees’ attorneys informed Africk that the city’s current jail, then under construction, was not designed to accommodate detainees needing acute mental health care. (It was not required to under a 2011 zoning ordinance authorizing construction, an issue that was never addressed prior to the adoption of the consent decree.) Since the consent decree requires adequate care for all classes of detainees, the parties to the consent decree were forced to find a permanent solution. As a temporary measure, those detainees were for several years housed in a state prison. 

In 2016, when his office was struggling to reach timely compliance with provisions of the consent decree, Gusman agreed to cede control of jail operations to a federally appointed compliance director. (He has since taken back control of the jail.) As part of that court agreement, the compliance director was to issue recommendations for housing acute and subacute detainees. In January 2017, then-Compliance Director Gary Maynard recommended the construction of the 89-bed facility. 

Then-Mayor Mitch Landrieu came out in favor of the plan, even dispatching his city attorney to a City Council meeting to warn council members that failing to sign on to the plan could mean being found in contempt of federal court. The council voted in favor of starting the construction process. 

But progress on the facility stalled until 2019, when it was announced that the state would no longer house New Orleans detainees. That prompted an order from Africk for the city to prepare a temporary facility on the jail campus — the Temporary Detention Center — and “continue the programming phase of Phase III.” 

At the oral arguments on Monday, that history led Barksdale to interrupt and question Rosenberg’s arguments saying Africk’s order violated the PLRA. 

“The city agreed to it,” Barksdale said. 

Later, in her response to the city, attorney Elizabeth Cumming, who is representing the jail detainees, noted that at no time between Landrieu’s agreement on Phase III and Cantrell’s 2020 move to stop work on the facility did the city ever object to the 2016 agreement or the 2019 order.

“The city never challenged those orders,” she said. “It continued moving forward.” 

Jail size and city budget

Rosenberg said that between the initial 2016 agreement that led to the plans for Phase III, a lot had changed, and should be taken into consideration. To begin with, he noted, the population of the jail had been reduced from more than 2,000 to fewer than 800. 

The main jail building, the Orleans Justice Center, “is only being partially used because of that decrease,” he said. As a result, the city prefers a partial retrofit of OJC as a permanent housing solution for acute and subacute detainees. 

But Cumming said that North and Africk took the lower population into account and still found the retrofit lacking. OJC, she said, can’t accommodate a full infirmary or other necessary programming, like private group therapy sessions that can be held away from uninvolved inmates or those in different classifications. 

“There is no space for mental health care,” she said. “The parties have a plan to fix the ongoing structural issues. … And that plan is Phase III.” 

Elizabeth Hecker, an attorney for the DOJ, addressed the city’s arguments about costs. The city has access to post-Katrina FEMA money to build Phase III. But attorneys for the Cantrell administration have claimed that those funds fall about $15 million short of the estimated $51 million construction cost. However, in 2020, an attorney for the jail’s then-Compliance Director Darnley Hodge argued that the money for Phase III came out of a $70 million pot of federal funds to replace the jail’s Templeman II building, of which nearly $50 million is left. 

In his rebuttal, Rosenberg did not respond to Hecker’s points about the FEMA money, which Judge Carl Stewart later pointed out.

“It’s telling to me that in five minutes of rebuttal, you never addressed the FEMA money,” Stewart said

Susan Hutson

An attorney for Susan Hutson, who was elected Orleans Parish Sheriff in December but will not be sworn in until May, also spoke before the panel on Monday.

Hutson is not currently an official party to the consent decree. But she ran in part on her opposition to the building, aligning with local criminal justice reform advocates who have long opposed any expansion to the jail. Because she has an interest in the outcome of the appeal, her attorney, Joshua Force, was allowed to address the appeals court. 

Still, Barksdale asked Force what standing Hutson has in the case.

“Here we have a person who isn’t even in office,” Barksdale said. 

“She will have to deal with whatever decision this court holds,” Force responded. 

Force went on to argue that forcing the city to move forward with Phase III now would violate the state constitution and the city’s charter because the City Council has not given its approval to the building in a new zoning ordinance. Council members have publicly expressed their opposition to the building and have refused to take a vote on whether to approve new zoning to allow for it.

But Barksdale seemed unmoved by the argument.

“You don’t think the Louisiana Constitution and the Home Rule Charter trump the need for constitutional conditions?” at the jail, he asked.

Force responded that the consent decree itself doesn’t require the construction of Phase III. 

“The sheriff-elect is committed to complying with the consent judgment, but she is in support of the retrofit,” he said. 

Nick Chrastil contributed to this report.