(La'Shance Perry/The Lens) Credit: La'Shance Perry / Government & Politics - The Lens

Any day now, the New Orleans jail population could reach its legal cap, set by the City Council in 2019. 

As of Tuesday (Sept. 19) the jail population was 1,222 – according to a City Council data dashboard. The Tuesday total was a mere 28 people away from the population cap – 1,250 – set by the council in the jail’s conditional use permit. 

On Wednesday morning, for unknown reasons, the population dipped slightly, with the dashboard showing 1,204 people in custody. The Sheriff’s Office said that their official tally was even a bit lower, at 1,188 on Wednesday morning. Jeff Asher, of AH Data Analytics, who set up the City Council dashboard, said that it pulls directly from OPSO data, so the discrepancies could have to do with time of day the counts were made. 

Still, the cap’s approach seems imminent. The New Orleans Police Department generally makes between 10 to 30 arrests per day. 

It’s unclear what — if anything — will happen if the cap is reached. The zoning ordinance that set the jail’s population cap does not include any enforcement provision. It is a municipal violation that falls under the city’s Division of Code Enforcement, whose staff would be responsible for citations or other sanctions. Normally, venue overcapacity leads to fines or properties being shuttered.

It’s also unclear what exactly is driving the increase. Some point to increased arrests, others to lags in court processing and a spike in bonds set for newly arrested defendants.

This is the first time that the Orleans Parish Justice Center has threatened to hit the cap since it was adjusted in 2019.

When asked, officials with the city and the Sheriff’s office did not have much to say. They didn’t outline any steps — immediate or long-term —  that would be taken to reduce the jail population. They also didn’t say what could happen if the population goes over the mandated cap. 

But apparently, there are two separate subcommittees working on the matter.

The sheriff’s office is “in the process of forming a jail management subcommittee” at the sheriff’s request “to improve collaboration and prioritize the processes related to jail admissions and releases from OPSO custody,” said spokesperson Casey McGee, in a statement.

The city referred to a longer-standing group, the Jail Population Management Subcommittee of the city’s Office of Criminal Justice Coordination, which meets monthly “to facilitate conversations between stakeholders to identify and implement strategies and policy recommendations to maintain the permanent reduction of the Orleans Justice Center’s (OJC) average daily population,” said John Lawson, a spokesperson for Mayor LaToya Cantrell’s administration, by email.

An age-old question: who belongs in the Orleans jail?

The intake center at the Orleans Justice Center where individuals are brought after arrest. (La’Shance Perry/The Lens) Credit: La'Shance Perry / Government & Politics – The Lens

The question of who should be kept in jail is decades old, dating back to the 1970s, when Angola inmates sued because of barbaric conditions and a federal judge paused all admissions to the Louisiana Penitentiary at Angola, the state’s only maximum security prison. Newly convicted people, unable to be transferred, piled up in jails across the state. 

Faced with his own lawsuits about overcapacity, then-Sheriff Charles Foti decided to create his own solution, putting his own inmates to work to transform every building around him — including an office building, motel, school and fire station — into a jail. He kept Louisiana state prisoners in the new beds and collected per diem fees for them. When he left office in 2004, his jail had ballooned to 7,524 beds.

But Foti’s gigantic jail complex was so out of proportion to the city’s population that it spurred a backlash. When the complex flooded after Hurricane Katrina, advocates were determined not to rebuild it, leading to today’s more modest-sized jail – and the population cap that it is now approaching.

After Katrina, the new sheriff, Marlin Gusman, was part of the Jail Population Management Subcommittee to decide how big the new jail should be. But he did not agree with the subcommittee’s final determination of necessary beds for the jail, originally set at 1,438.

In 2015, days before the current jail facility was set to open, Gusman transferred hundreds of detainees to other parishes, citing lack of bed space in the new jail. The move angered Mayor Landrieu’s administration, along with public defenders, who weren’t able to meet with clients in the jail.

McGee declined to comment on whether or not the sheriff has considered moving detainees to other facilities.

From its pre-Katrina high of 7,524, the jail population began steadily decreasing around 2010, due to a combination of reforms made by police, the court system, and city leaders.  

The jail population plummeted to fewer than 800 people in the early months of the COVID-19 pandemic, as police made fewer arrests and some criminal justice agencies and advocates pushed to release lower-level offenders or detainees who were at higher-risk for the virus, which was able to spread with lightning speed within correctional populations.

Over the last few years, numbers have steadily rebounded, rising by several hundred just this summer and finally – now – near 1,200. 

The “inmate cap” is a relatively new development. Initially, when the new jail was approved for construction in 2011, the City Council mandated that it have no more than 1,438 beds. 

But in 2019, the city and Gusman opted to renovate portions of the Temporary Detention Center, to accommodate dozens of Orleans Parish detainees with mental illness who were previously being held at a state prison in St. Gabriel, Louisiana. The renovation would have increased the number of beds beyond the 1,438 cap set in 2011.

Gusman pushed to raise the cap to 1,731. But a number of advocacy organizations objected to any increase in the number of beds, and opposed the renovation altogether. 

Finally, the City Council passed what they described as a compromise — they got rid of a bed-cap, but created an “inmate cap” of 1,250. 

Population increases driven by high bonds, sluggish case processing and more arrests

In recent months, observers say, police have made more arrests on serious charges, judges are setting steeper bonds and cases are moving more slowly through Criminal District Court.

Most of the people being held in the jail are awaiting trial. Some may have already been sentenced and are awaiting transfer to a DOC facility, in addition to people being held on parole or probation holds. The Sheriff’s Office did not respond to requests for how many DOC-sentenced individuals were currently in the jail.

“Currently, cases pending in criminal district court are the main driver of the increased jail population; this prevents OPSO from being able to move people in and out of the jail more efficiently,” wrote McGee. “We are working with our partners at every level of the criminal legal system – judges, prosecutors and the defense bar including the public defenders – to be proactive in our approaches to tackling this issue as we work to remain in compliance with the city’s mandated inmate cap for the Orleans Justice Center.” 

Asher, who previously worked as a crime-data analyst for the City Council, points to increased arrests — particularly on assault charges —  and stepped-up bond amounts as the primary drivers of the increase. 

While overall arrest numbers have increased slightly in the last several months, they are not dramatically higher than other points since the start of the pandemic. 

Assault arrests, on the other hand, have increased dramatically just since the start of this year, and more people have been arrested on assault charges in the last 60 days than any other 60-day period since at least 2010, which is as far back as the Council data goes. 

Asher said he did not have an explanation for the dramatic increase.

The bonds on aggravated assault charges have also increased steadily since 2022. At the start of that year, the average bond being paid for aggravated assault was around $5,000, according to another City Council dashboard. Now it is closer to $12,000.

Recently, Orleans Parish District Attorney Jason Williams wrote a letter to judges at criminal district court judges claiming they were setting low bonds for violent offenders. But an analysis by the Times-Picayune/New Orleans Advocate found that judges frequently set amounts higher than prosecutors had recommended.

The cap’s real consequences, for those who work or are kept in the jail

Reaching or going past the inmate cap raises legal issues. But it also causes other worries, because it spreads staff too thin for a sheriff’s office that federal monitors described as dangerously understaffed.

It is “increasingly difficult for staff to effectively maintain a safe jail for residents and staff,” McGee said, noting that the situation “has led to more frequent altercations between residents, disciplinary infractions and additional uses of force.”

The population climb should “raise the alarms,” said Danny Engelberg, head of the Orleans Public Defenders Office, who said that the jail is not safe for many of the people represented by his office.

“We routinely have clients deteriorate from mental illness or substance use disorders,” Engelberg said in an email. “We have had clients sit in jail for months, only to have their cases refused because there wasn’t evidence to support the arrest. We have had clients unfortunately die in custody. And we’ve had clients lose parents and children while they were incarcerated. These are not statistics anyone should be proud of.”

To determine how to lower today’s jail population, Engelberg suggested looking at the reductions achieved during the pandemic – and the releases of low-level offenders, routinely made when serious storms threaten the city.

“We have seen the safe, successful release of numerous of our clients, specifically at the onset of the pandemic and in advance of a hurricane evacuation. There simply isn’t a sound reason we can’t continue those practices,” Engelberg said.

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...