A three-judge panel for the U.S. Court of Appeals for the 5th Circuit on Thursday affirmed a lower court’s 2021 order that the city of New Orleans must move forward with construction on a controversial jail medical and mental health facility known as Phase III.

The ruling represents another defeat for Mayor LaToya Cantrell’s administration, which has since 2020 been trying to get out of an earlier agreement to build the facility made by her predecessor Mayor Mitch Landrieu. The Cantrell administration argues that the $50-million-plus facility is too expensive and unnecessary.

But early last year, U.S. District Court Judge Lance Africk, who is presiding over the long-running federal consent decree over Orleans Parish Sheriff’s Office, ruled that the city must adhere to its agreement. The city quickly appealed the ruling, arguing before the 5th Circuit judges last March.

Through most of the dispute, the city was the lone party to the consent decree against Phase III. Former Sheriff Marlin Gusman long favored building a new jail facility. His administration even left room for it a decade ago when it oversaw the construction of a new jail building and kitchen/warehouse facility on its campus, in the form of a jail-sized “green space” between the two buildings.

The other parties, the U.S. Department of Justice and civil rights attorneys representing detainees in the jail were all in favor, the plaintiffs in the lawsuit that led to the consent decree backed Phase III on the basis that the current jail — the Orleans Justice Center — was not designed to accommodate detainees with acute needs.

But Gusman has since been replaced by a new sheriff, former city Independent Police Monitor Susan Hutson, who took office in May. Hutson ran on a reform platform, and she sided with groups like the Orleans Parish Prison Reform Coalition that have long opposed any increase to the jail’s footprint and argued that people with acute mental health problems should be treated in a medical setting, not a jail.

“Throughout her campaign, Sheriff Hutson was steadfast in her opposition to Phase III,” read a written statement from Hutson’s office on Thursday. “The citizens of New Orleans elected her to serve as their Sheriff; embracing her commitment to retrofitting the existing jail. In light of the decision from the Fifth Circuit, the Sheriff is exploring her options and considering next steps. Sheriff Hutson is committed to the safety of every life under her care, both the deputies who serve in OJC and the residents who are housed there.”

‘There is ample evidence … that the existing facility remains inadequate’

The city’s arguments shifted over the course of the dispute, but they essentially boiled down to three issues: the necessity of the facility, its cost and the legality of Africk’s order.

The city argued that improved care at the jail, along with a steep drop in the detainee population over time, made the 89-bed facility unnecessary to provide adequate care to all classes of detainees, which is required under the consent decree. What’s more, attorneys for the city argued, at a proposed cost of $50 million, Phase III was too expensive. Though the majority of the construction — $39 million — would be covered by post-Katrina FEMA reimbursements, the city would be on the hook for the rest, plus millions of dollars per year to run it, possibly jeopardizing its ability to provide other critical public services.

Finally, the city argued that Africk was prohibited under the federal Prison Litigation Reform Act from ordering a municipal government to build a jail facility.

But the Thursday opinion authored by Judge Rhesa Barksdale found that all three arguments failed.

In response to the city’s argument about the Prison Litigation Reform Act, the other parties to the consent decree had previously argued that, in fact, Africk did not order the city to build a jail. He ordered the city to honor a previous agreement made by Landrieu in 2016 as part of a settlement. That settlement saw Gusman stripped of day-to-day control over the jail, and it gave a new compliance director — an appointed official who took over in Gusman’s place — the power to draft a plan to house detainees with acute needs.  In January 2017, then-Compliance Director Gary Maynard recommended the construction of the 89-bed facility. 

But Thursday’s opinion didn’t touch on the merits of the arguments. The PLRA argument was outside of the scope of the appeals court’s review, the opinion said, because the city made it late. The city was required to prove that a significant change in condition or law required letting it out of its previous agreement. The city not only failed to bring up the Prison Litigation Act in the years leading up to 2020, it didn’t do so in its original 2020 court motion to be let out of its previous agreement. It was not until a subsequent reply brief that the issue surfaced.

For the appeals court to consider the argument, the opinion said, the city would have to prove that the relevant provision of the PLRA constituted a significant change in law or circumstances such that Africk’s order was “no longer equitable.” The appeals court found that city’s argument fell short.

As for the cost, the appeals court judges found that the city had more FEMA funding available than it claimed. The funding earmarked for Phase III comes out of a $70 million post-Katrina pot of federal funds meant to replace the jail’s Templeman II building, of which nearly $50 million is left. 

And the judges did not accept the city’s arguments that a retrofit could provide for adequate inmate care, finding that the current jail is simply not built for the job.

“The city’s assertion that the OJC already provides detainees with medical and mental-health care above minimum constitutional standards lacks merit,” the opinion said. “There is ample evidence, including testimony from independent monitors, that the existing facility remains inadequate because it lacks … suicide-resistant cells; appropriate activity space for programming required by the consent judgment; and an infirmary. Because the existing facility remains inadequate, the requisite changed condition does not exist.”

Mayor LaToya Cantrell’s office did not immediately respond to a request for comment on the ruling.