Orleans Parish Sheriff Susan Hutson filed a motion in federal court this week in a last minute attempt to halt construction of a controversial 89-bed jail building that has been slated to break ground in the coming weeks. 

While the project has nearly no local political support, the city and sheriff have been ordered — again and again — to construct the facility, known as Phase III, by a federal judge overseeing the jail’s long-running consent decree. The judge, along with a team of court appointed monitors, civil rights attorneys representing people incarcerated at the jail, and the United States Department of Justice, have all argued that Phase III is the best option for providing adequate mental and medical health care for people who are locked up in the troubled jail.

But on Monday evening — echoing, to some extent, previous arguments made by lawyers for the city dating back to 2020 — lawyers for Hutson said that the judge “lacks judicial authority” to force Hutson and the city to carry out a prior agreement to build Phase III, and that Hutson should not be forced to honor agreements made by her predecessor, Marlin Gusman, who left office in May of 2021.

“Even if this Court had authority to enforce the private settlement agreement, which it does not, this Court could not enforce the agreement against Sheriff Hutson,” lawyers wrote in their filing. “Sheriff Hutson was not a party to the agreement.”

While it is not entirely clear what impact the move will have on the construction of Phase III, it is likely to frustrate — to say the least — United States District Court Judge Africk, along with Magistrate Judge Michael North, who has been handling Phase III matters.

In 2020, Mayor LaToya Cantrell’s administration also attempted to get out of building Phase III,  arguing that it was too expensive and unnecessary. After months of written arguments and a multi-day hearing, Africk ultimately ruled against the city and ordered them to move forward with the project. That order was upheld by the 5th Circuit Court of Appeals. 

Since then, North has been adamant that the project move forward without any unnecessary delays, and has even threatened contempt of court for city officials. 

Hutson ran for Sheriff partly based on her opposition to the new facility. But since taking office, she has attempted to navigate that opposition with respect for the court’s orders. 

The filing on Monday is a marked shift to a more adversarial stance. 

It comes as Hutson, along with members of the New Orleans City Council, have balked at the ballooning price tag on the facility. As recently as last year, city officials estimated the cost of Phase III at $51 million, of which Katrina-related Federal Emergency Management Agency funds would cover $39 million. 

But earlier this year after receiving just one bid for the project in two separate calls for proposals, the city agreed to an $89 million contract for construction with the Metairie-based McDonnel Construction Services. Officials have estimated that the total cost for the facility will ultimately be around $109 million.

Last week, the City Council unanimously approved a resolution urging a third-party audit of the cost of the Phase III. And in a letter to the court, Hutson also outlined her practical opposition to the facility. 

In addition to its cost, Hutson said that the design is “outdated” and “has numerous flaws that undercut its effectiveness” in providing constitutional care to detainees. In the letter she urged the court to “help lead a robust conversation” with stakeholders around alternatives to the facility. 

North responded to the letter by ordering a status conference, scheduled for  Wednesday,  June 28, saying it was necessary to ensure that “the parties in the case understand the case history, the Court’s prior rulings, the consequences for ignoring those rulings, and the Court’s determination for seeing through its previous orders.”

Prison Litigation Reform Act

Hutson’s legal argument, however, has little to do with the merits of the Phase III itself. Instead, her lawyers are arguing that federal law does not allow the court to force parties in the consent decree to build a new jail — even if they had previously agreed to do it. 

That argument is based on a reading of the federal Prison Litigation Reform Act, which was passed in 1995. It mandates that federal court orders related to improving jail or prison conditions be “narrowly drawn” and notes that nothing in the law should be “construed to authorize the courts… to order the construction of prisons.” 

When the city brought up the PLRA in relation to Phase III during their attempt to get out of building it, North found that it did not apply — in part — because he was only ordering them to carry out something the administration had agreed to do under Mayor Mitch Landrieu. In 2016, Landrieu had signed an agreement with Sheriff Gusman that they would move forward with whatever plan was suggested by a newly appointed compliance director, Gary Maynard. In 2017, Maynard recommended Phase III, and in 2019 the court ordered that the city move forward with that plan.

“The orders the City now claims violated federal statutory law did no such thing – they simply ordered the City to effectuate a plan it had voluntarily and contractually bound itself to undertake,” North wrote in a 2020 report denying the city’s arguments.

Lawyers for Hutson on Monday claim that the court does not have the authority to force the parties to carry out that agreement.

But North also argued that the city’s claim that the federal court could not independently order construction of a new jail building was also wrong, if that the facility was necessary to provide constitutional care. 

“Its argument that the Court is statutorily prohibited from ordering the construction of a Phase III facility is wrong as a simple matter of statutory interpretation,” North wrote. 

On Monday, lawyers for Hutson said that it was North’s interpretation of the PLRA that was wrong. 

“The express purpose of the PLRA and its language do not support that suggestion,” they argued. “Congress expressly intended to curb federal courts’ remedial authority in prison reform litigation to prevent judicial micromanagement of prisons and restore control to the states.” 

In a recent status report, the city estimated that they would issue a notice to proceed with construction of Phase III to the contractor by July 7.