Litigation is not the best path to a good result. For proof, look no further than the ongoing battle within the jail consent decree over whether to build Phase III, a new “mental health jail.”
The proponents of Phase III—the MacArthur Justice Center, acting as lawyers for current and future jail residents; the U.S. Department of Justice; and the Court—surely care about a good result. But at this point in the litigation, they are so focused on winning that they’ve lost sight of what they are, or should be, fighting for: the well-being of those current and future jail residents, as well as the greater good for the New Orleans community.
For proponents of Phase III, a win means forcing the City to build a $110 million facility to house roughly 50 detained patients with acute or sub-acute mental health needs, a facility that the Sheriff won’t be able to staff.
A court “victory” will not provide an answer to the urgent problems at hand.
As the litigation continues, everyone involved should search—outside the courtroom—for an answer to the question: What is the best approach to providing care for those in need and how do we make that happen?
What’s clear is that no physical facility, such as Phase III, will ensure that people get proper care. Buildings cannot provide care, only people can.
To improve the well-being of jail residents and the community, we need to address how best to support the staff who provide care within the jail’s buildings and how best to bring mental health care to the entire community.
And there must be sufficient staff to support. The proponents of building Phase III fail to recognize that the jail is critically understaffed, even though the staffing shortage has been regularly cited as the main cause of inadequate mental health care by the federal court monitors. The jail needs 242 more deputies to provide operations in its current buildings. This is a problem that won’t be solved by building an additional building; it will be exacerbated. And it’s not likely to improve over time; staffing is a growing problem among law-enforcement agencies nationwide.
That the litigation fight is obscuring the search for a good solution is also evident in the design. By advocating for Phase III, the proponents are prioritizing a court victory over the well-being of the people who live and work in the jail.
As designed, the building would cause the most vulnerable jail residents to be housed in a panopticon, a circle of glass-fronted cells in which every patient can be seen by staff and other patients 24 hours a day. This inhumane 18th-century design has been abandoned in every prison and jail in the country for even the hardiest of inmates, let alone the seriously mentally ill.
Moreover, the large circular design requires that severely mentally ill jail residents be housed two to a cell, which will not be safe or healthy for most of them. The federal monitors’ latest report emphasizes “the necessity of single person cells for the majority of acute inmates.” But the Phase III plan calls for only 22 beds in single cells, with 68 beds in two-person cells.
Only recently, after community members, the Sheriff, and City Council raised their voices, the architects made small cosmetic changes to the design—making the doors half instead of full glass, suggesting that the glass could be tinted, and the like. The architects argue that the housing unit is not a panopticon because it is only one story and the security station at its center is open, not closed. That’s a weak attempt at deflection; Merriam-Webster defines a panopticon as “a circular prison built with cells arranged radially so that a guard at a central position can see all the prisoners.”
The architects and proponents ignore the two-bed cell problem because no changes could be made without a total redesign. The panopticon’s circular design is driving the two-person cells; you can only put so many cells around the perimeter of a circle. The configuration also drives up the size of the building and therefore its cost—a panopticon requires vast open spaces in the middle of the circle and construction costs largely depend on square footage. No one can have confidence in a plan if only now have the planners seen fit to make even basic changes, after years of ignoring opposing voices.
Had they been focused on care, the proponents of Phase III would have brought in people competent to design such a facility years ago.
As for the cost to taxpayers, the proponents’ zeal for winning the litigation fight blinds them to the squandering of $100 million—reappropriated to the jail from dozens of needed community projects—and the canceling of any hope that the City could build a critically needed community-based mental health facility to treat people before their illnesses lead to crime.
That the litigation is about winning rather than finding the best course of action is reflected in the proponents’ own reversals of position. Until 2018, MacArthur and DOJ agreed with the City that the Prison Litigation Reform Act (PLRA) prohibits a federal court from ordering jail construction and that, in any event, a retrofit of the current jail was a better approach than building an additional jail.
As for U.S. Magistrate Judge Michael North, in 2020 he maintained that the PLRA’s prohibition on federal courts ordering local officials to build jails didn’t apply because the court had not ordered it but was merely ordering the parties to comply with a prior private settlement agreement, through which they’d agreed to build Phase III. But the PLRA also prohibits federal courts from enforcing private settlement agreements. And last month, faced with Sheriff Susan Hutson’s motion pointing to that fact, Judge North did an about-face, claiming that the private agreement he identified in 2020 had in fact been transformed into a court order that the court could enforce.
Both Sheriff Hutson and the City have been consistent in their opposition to Phase III, based on both the law and what’s good for New Orleanians inside and outside the jail. Members of the community, including advocacy and membership groups whose mission is to improve conditions for people incarcerated in the jail, also have been consistent in their opposition to Phase III.
The parties—MacArthur Justice Center, DOJ, the City (including the City Council), and the Sheriff—should engage in a sober discussion mediated by an independent professional to determine what facilities would be sufficient to offer adequate care for detained people with acute and sub-acute mental health needs. They should address cost, including how to conserve sufficient capital funds to build needed community-based mental health facilities; staffing; speed; and the governmental commitments to put the plan into effect. They should do so under a self-imposed timeline; should engage with the federal monitors as they deem helpful; and should keep the judges informed.
Only after such a discussion can everyone—the winners and losers of the litigation battle and, most importantly, the people of New Orleans—come out on top.
Jon Wool is the former Founding Director of the Vera Institute of Justice in New
Orleans, 2008-2020; Susan Guidry, is a former District A Councilmember and Chair of the Criminal Justice Committee, 2010-2018