On Tuesday, U.S. District Judge Lance Africk denied a legal challenge by Sheriff Susan Hutson, who had maintained that the nation’s laws prohibit a federal court from ordering local governments to build jails.

“The Sheriff’s motion is yet another thin-veiled attempt to end-run the original decision,” Africk wrote about the pushback against jail construction over the past several years, as he adopted a report and recommendation from Magistrate Judge Michael North.

Meanwhile, the advocacy group VOTE filed suit against the city for its own end-run in the other direction: a quiet reappropriation of city funds totaling $32 million, which are now slated to be spent on Phase III construction.

In a statement on Tuesday, Hutson did not indicate whether or not she would appeal Africk’s ruling, saying she was still reviewing it with her legal team. 

“I find it disappointing and disagree with the legal basis for Judge Africk’s reporting recommendations,” Hutson said in the statement. “Yet, I remain committed to abiding by all lawful orders and discharging my responsibilities as Orleans Parish Sheriff with consideration for what’s in the best interest for jail residents and the community at large.” 

Hutson has never supported the construction of Phase III, a controversial “special needs” jail facility for people with acute and subacute mental illness. She had also argued that she was not bound by the allegiances of her predecessor, Sheriff Marlin Gusman. Africk shot down that idea in his decision as well, emphasizing that his authority does not “depend on the outcome of a local election.” 

Africk, who was tasked with overseeing the jail’s federal consent-decree, stands firm in his decision that Phase III is the only realistic way to provide adequate care in the jail to people suffering from mental illness. The judge’s position is shared by officials from the U.S. Department of Justice, jail monitors tasked with tracking consent-decree progress, along with civil rights attorneys representing those who are in jail or have been kept there.

City Councilmembers and Mayor LaToya Cantrell have both said that they oppose spending such a high price tag – now up to $110 million – to construct the 90-bed Phase III facility on an empty lot on Perdido Street next to the Orleans Justice Center.

In June, with the facility’s construction costs ballooning, the City Council unanimously passed a non-binding resolution urging the federal court to order an independent audit of those costs. But Magistrate Judge Michael North said that such an audit would be “irresponsible” and “unnecessary.” 

It is not entirely clear where the Council would come down on funding the facility if they were ultimately forced to vote on it. 

Though Councilmember Joe Giarusso voted for the audit request, he later heard North’s admonition to the city and believes that he and his colleagues shouldn’t hold out for an audit and risk being held in contempt of court. Still, at a meeting last month, City Council President JP Morrell said that he would not be inclined to fund the facility without the audit. 

At last month’s hearing, the city told the court that it will issue a notice to proceed to contractors on September 15, and in Africk’s Tuesday ruling he warned that parties would face “severe sanctions” for any additional delay.

Last month, as City Attorney Donesia Turner appeared in federal court for a status conference on the consent decree, the city’s Capital Projects Department bypassed City Council approval – typically required for capital projects – and quietly re-appropriated $32 million of its budget for Phase III. 

Until recently, the city held the same position as VOTE: that an ordinance from the council was necessary to allocate the necessary city funding, even in the face of the federal court order to move forward with construction. Previous allocations for Phase III were approved by the council. 

But while in court on August 17, Turner indicated to Magistrate North that funding was in place for the facility, though no council ordinance had been passed. In a subsequent court filing, the city reported that $32 million in additional funding had been allocated that day.

VOTE challenges that the city quietly $32 million shuffled to jail

Less than a month after the city’s Capital Projects Department moved the $32 million, the August 17 appropriation was challenged by the group Voice of The Experienced (VOTE), a group founded and run by formerly incarcerated people and their families and allies.

VOTE’s lawsuit, filed against the city in state civil court last week, takes a different tack. It argues that Cantrell’s administration violated local laws with the re-allocations, taking necessary money away from the city’s neighborhoods and their residents.

“I love my city, and every time I drive around my city I see so many projects that are undeveloped and underfunded. Streets need to be maintained, parks need to be developed, houses need to be fixed,” said VOTE policy director Ronald Marshall, who spent 25 years in Louisiana prisons. “Yet the city has decided to spend $31 million to build a panopticon jail to house people that they say have acute or subacute mental illness,” he said, referring to Phase III’s controversial designs.

Specifically, VOTE’s suit argues, the city’s capital allocations sidestepped the City Home Rule Charter, which requires City Council to pass an ordinance approving capital budgets and any subsequent budget amendments. The City Council democratic process, guided by citizen input, ensures that the city “does not have an unfettered right to spend money as it wishes,” the VOTE petition argues.

No ordinance accompanied this most recent allocation.

Beyond the legal challenge, VOTE members called upon the City Council to investigate the $32 million funding allocation, to determine if proper procedures were followed. It was unclear if CityCouncil members were sympathetic to that request; no one except Councilmember Joe Giarrusso replied to an email message from The Lens on the matter, and Giarrusso demurred, citing the litigation.

On Tuesday morning in Orleans Parish Civil District Court, the city filed a motion to move the case to federal court, arguing that VOTE was attempting to “circumvent” Africk’s rulings and “collaterally attack the Consent Decree’s express mandate for the City to complete Phase III.” During a quick same-day hearing in front of Civil District Court judge Kern Reese, VOTE attorney Emily Posner said she plans to attempt to get the case back into state court. 

VOTE members contended that last week’s lawsuit follows the same arc that VOTE has long followed – rejecting any calls for new jailbeds while demanding better community mental-health access, said VOTE member Kiana Calloway, who spent 17 years incarcerated, starting at age 16, for convictions he maintains were wrongful. Now he mentors others and pushes for more mental-health help through the nonprofit he leads, Roots of Renewal, and as a member of VOTE..

“This did not just start today,” said Calloway, of VOTE’s focus. “We’ve been working to provide more resources to people with acute and subacute conditions that will not require being behind steel plates, concrete walls, or a hexagon globe.”