A fairness hearing about a proposed Orleans Parish Sheriff’s Office consent decree continues Wednesday morning in federal court. It’s the third of what’s expected to be three or four days; scroll to the bottom of this post for each day’s live blog.
The hearing was scheduled by U.S. District Judge Lance Africk in an attempt to determine whether the City of New Orleans will remain a third-party defendant in a lawsuit filed by the Southern Poverty Law Center against Sheriff Marlin Gusman. The Southern Poverty Law Center alleges unconstitutional conditions at the jail. (For background on the consent decree, including what it would do and why the city of New Orleans is involved, see our explainer.)
After he was sued by the law center, Gusman asked the judge to add the city as a third-party defendant, saying that it funds the jail and bears some responsibility for conditions there. Gusman says the $23 million a year in per-prisoner payments from the city is inadequate.
The city has argued that it is not responsible for prisoner-on-prisoner violence that goes on at the jail, nor is it responsible for inadequately trained deputies violating prisoners’ rights — that’s Gusman’s job. Nor is it responsible, the city has argued, for Gusman’s mismanagement of the money it does send his way each year.
Gusman has countered that city money sent his way is specifically used for the care and custody of prisoners under a per-prisoner payment system that pays him $22.39 a day for each prisoner he holds. Last year he told the city he needed $37 million in his 2013 budget under the per-prisoner formula.
He got the $23 million, a figure generally in line with what the city has paid in years past. Gusman said he would have used that additional $15 million to begin implementing aspects of the proposed consent decree having to do with staffing and pay at the jail. Deputies at the sheriff’s office are the lowest paid deputies in the region.
At the same time Gusman was losing the fight with City Hall for his $37 million request, he agreed to sign off on a proposed consent decree that had been in his inbox since 2011, and which the Department of Justice had repeatedly urged him to embrace.
At a December press conference notable for its absence of city officials, Gusman, the U.S. Department of Justice and the Southern Poverty Law Center announced it reached an agreement to settle the class action suit through a consent decree that would address issues ranging from the proper care of mentally ill and suicidal inmates to the proper training of deputies; it calls for an independent monitor to mark progress at the jail and sets a two-year time frame within which Gusman or his successor could get out from under the decree — if the decree’s demands are met.
Once those three parties had agreed to this approach, this week’s proceedings shifted from a bench trial where Africk would determine whether the jail was flatly unconstitutional, to a hearing about whether the city can get out from the proceedings entirely, which it would desperately like to do.
The general contours of the hearing will likely run thus: The city will work to show that Gusman has been sent sufficient money to run a jail in compliance with the Constitution and that he’s blown through his budgets like a greedy diner eating on someone else’s dime, a charge offered in a recent court filing submitted by the city.
Gusman’s lawyers will argue the city has some responsibility for conditions and activities identified in the lawsuit and addressed in the consent decree demands, and that it should remain a co-defendant even though the original lawsuit did not include the city. The draft consent decree released by the Department of Justice in December has since been updated to include the city as a party to the consent decree.
Still, even as he accepted the terms of the consent decree, Gusman told reporters late last week that he didn’t think the jail was being run in an unconstitutional manner.
The city has lately accused Gusman and the Department of Justice of working in bad faith to put it in the crosshairs of litigation, which comes after another consent decree with the New Orleans Police Department aimed to bring the police into compliance with 21st century policing norms. The city’s trying to get out of that decree, too, but admits it will likely pay $55 million in police reforms over five years whether there’s a consent decree or not.
Based on an email sent between Gusman’s lawyers and the U.S. Department of Justice in July, the city said Gusman is demanding an additional $22 million a year over five years to pay for the decree.
Mayor Mitch Landrieu told the city council last week that the city couldn’t afford both decrees — and that Gusman’s problem shouldn’t be pawned off on city workers or on services provided to New Orleanians by the city.
That financial question will be left for a second hearing, scheduled in May to determine how much money would be needed to implement the consent decree.
Another hearing will be held July 1 to determine who be paying for it.
By then, the city hopes it will be long gone from the proceedings.
