Despite a federal judge’s order, a long line of city officials still oppose the construction of Phase III, a controversial $109 million mental-health-care facility meant to serve patients locked up in the New Orleans jail.
On Wednesday, in front of the New Orleans City Council’s criminal justice committee, representatives for Sheriff Susan Hutson and from Mayor LaToya Cantrell’s administration again dug in their heels, as did several New Orleans City Councilmembers.
Over and over, officials and New Orleans residents told the committee that they questioned the facility’s efficacy and design. To build the increasingly expensive structure, they said, the city would have to tighten its belt, eliminating other essential services.
“It would take away significant resources from the other efforts that the city is trying to do preventatively,” said Dr. Jennifer Avegno, the city’s health director. “And it sets up an endless cycle of failure, if you are only getting care while incarcerated that does not match the care that’s able to be provided when you get out.”
The general arguments are not new. They have been debated and litigated for years. But the new push against the facility comes as contractors — led by Metairie-based McDonnel Construction Services — gear up to start building.
Just last month, attorneys for the city told U.S. District Judge Lance Africk that they would issue a notice to proceed to McDonnel by July 8th. A groundbreaking would follow shortly thereafter, they said.
The city’s lawyers told the judge that only a few administrative issues needed to be squared away: the approval of a cooperative-endeavor agreement (CEA) between the city and the Sheriff, and a funding reallocation to cover the costs.
Now, that date has come and gone with neither issue accomplished.
From Wednesday’s testimony, it seems that city leaders are increasingly determined to stand in the way of Phase III’s construction.
Sheriff Susan Hutson won’t sign the construction CEA, said her office’s lawyer, John Williams. The City Council — which would need to approve a funding allocation — requested a second look at the massive increase in construction estimates, which have doubled in a matter of years, from $51 million to the current $109 pricetag.
Last month, the council passed a resolution calling for an audit of those proposed costs.
“There is no interest in entertaining the possibility of funding anything until the audit is done, and it is more than likely the audit will not justify Phase III,” Councilman JP Morrell said.
(The tone was notably different from a letter to the court that Morell and several other councilmembers signed last week, that said “any reasonable and responsible actor understands the fight is over,” with regard to Phase III.)
Meanwhile, Hutson has lodged a new legal challenge to Phase III in the jail’s consent-decree litigation, arguing that the federal Prison Litigation Reform Act prohibits federal judges from ordering the construction of new jails or prisons.
Advocates and opponents of Phase III have argued many of the same points for years. The facility is too expensive, they say. Adequate care could be accomplished through a retrofit of the current jail facilities. Money would be better spent on preventative mental-health care for people, before they end up incarcerated.
Africk, the federal judge overseeing the consent decree, has heard all of the arguments – but he has roundly and repeatedly rejected them. From his perspective, the current jail has continuously failed to provide constitutional mental-health care to people in its custody. He’s ruled that the Phase III facility is the only viable option to improve care and prevent suicides.
He has also rejected an argument made by the city in 2020 that cited the Prison Litigation Reform Act as its basis, similar to Hutson’s latest challenge.
Pres Kabacoff, a New Orleans developer who has been active in opposing Phase III, called for everyone “to lower the temperature” of the debate, to bring the judge and the other parties in the litigation to the table.
But some council members didn’t seem so inclined.
Morrell called Phase III an “overly expensive glass hellscape” that would “likely bankrupt and decimate all the capital-outlay projects we have on the table.”
Councilman Oliver Thomas has seen other ill-advised projects in his political life, he said. But Phase III tops the list. It’s the “goofiest thing,” Thomas said.
Detainees in glass cells on display around-the-clock, opponents say
Critics of Phase III also brought relatively new issues to the hearing — regarding the facility’s design.
The facility’s circular formation of glass cells surround a control pod, making detainees with mental-health concerns observable around-the-clock by guards and other detainees, in what several presenters described as an inhumane “panopticon.”
“During the day patients will be able to constantly see each other, 24 hours a day seven days a week, and taunt each other and staff — which is primarily female,” said James Austin, a jail expert and longtime criminal-justice consultant for the city, told the committee.
The design also contains mostly two-bed cells, which Austin described as a “fatal flaw” in the design. Detainees with acute and subacute mental illness should be held in individual cells, he said.
Those double-cell complaints have been previously dismissed by the jail’s chief psychiatrist, Dr. Jeffery Rouse, who has said psych staff would make a clinical determination to decide whether each individual in Phase III could tolerate a cellmate. Rouse also believed that the circular design allowed for greater lines of sight and that the facility’s sub-pod structure — with small groups of cells separated from one another — also allows for greater flexibility in separating different types of patients.
Austin renewed his call for alternatives to Phase III: either by retrofitting the third floor of the current jail, the Orleans Justice Center, to provide more counseling areas or by making a permanent facility out of the recently renovated Temporary Detention Center (TDC), a building that currently serves as an inpatient facility for detained people with acute and subacute mental illness.
In 2020, after a hearing, Africk ruled that a retrofit of the second floor of the Orleans Justice Center wasn’t viable. It would have left the jail with insufficient programming space, lower the overall jail bed capacity, and leave nowhere to house detainees under the age of 18 if a judge ordered them to be held in the adult jail.
(If held in an adult jail, federal law requires that juveniles be separated from adult detainees. For the past several years, city leaders and judges in New Orleans have agreed not to house any juveniles in the adult jail. But that agreement is not binding: individual judges still have the discretion to remand juveniles charged as adults to the adult jail. The jail could also be forced to house 17-year-olds accused of certain crimes — who still require sight and sound protection from adult inmates — if Louisiana legislators succeed in undoing portions of the Raise the Age Act.)
In 2020, Austin himself testified that the permanent use of the TDC wasn’t a “viable” option.
He’s now backed away from that assertion. His 2020 testimony was based on information he’d been given about the likelihood that the TDC would flood during a hurricane. “That turned out not to be good information,” Austin said. “It hasn’t been flooded, and when a hurricane comes in, they (the jail) evacuate — so it’s kind of a moot point.”
After a decade of heated litigation, no appetite for compromise
To what extent city leaders have the ability to stand in the way of construction of Phase III before being held in contempt of court is an open question. Federal Magistrate Michael North, who has been handling Phase III matters for Africk, has threatened it previously when presented with delays.
He has now asked the parties to file briefs arguing whether or not he can issue an order that would make the CEA between the Sheriff and city unnecessary.
Morrell, the council’s president, said that a good faith effort to compromise should have been made by the Cantrell administration years ago to provide adequate mental health care.
“What should have happened, is that early on in this litigation, where it was evident the city was going to lose, there should have been more of an effort to pursue the compromise that we are trying to pursue now,” Morrell said. Yet forging compromise seemed difficult now, he said, because a decade of “heated, angry litigation” had created tensions between city officials, the U.S. Department of Justice, and attorneys with the Roderick and Solange MacArthur Justice Center, who represent people in jail as part of the consent decree litigation.
Morrell accused MacArthur of “salting the earth” by refusing to revisit whether or not Phase III is “appropriate and necessary” after courts ruled in their favor, by ordering the city to move forward with the facility.
In 2020, MacArthur, along with the federal justice department, opposed the city’s efforts to get out of building Phase III. MacArthur also opposes the sheriff’s most recent complaint. In a filing, MacArthur called Hutson’s argument “the latest iteration of yet another ask to do nothing, indefinitely, to provide constitutional medical and mental health care to the people detained in the Orleans jail.”
Morrell said that the council would be happy to act as a third-party mediator, between the sheriff, the city, the U.S. Department of Justice, and MacArthur. But he doesn’t feel the spirit of compromise in the air.
“It is heartbreaking how this situation has devolved into a grudge match with no good solution on the table,” he said.