Back in 2016, U.S. District Court Judge Lance Africk ordered that Orleans Parish Sheriff Marlin Gusman give up control of day-to-day operations at the New Orleans jail. Instead of the elected sheriff, the jail would be managed by an appointed compliance director. Now, Gusman is on the verge of asking for the authority back — a move the current jail director appears to support.

At a status conference on March 24, Gusman made his intention known to file a motion to terminate the position of the jail’s compliance director, which was created in 2016 as part of the federal consent decree the jail has been under since 2013. Gusman’s motion was supposed to be filed by April 24, but he asked for an extension due to the circumstances with the coronavirus. Barring another extension, it is now due on May 25.

In approving the consent decree, Africk found that conditions at the jail — high rates of violence, what he called “extraordinarily high levels of rapes and sexual assaults” and “stark, sometimes shocking deficiencies” in medical and mental health care — had made the jail an “indelible stain on the community.” Even after the consent decree was approved, the Sheriff’s Office for years failed to show adequate progress in bringing the jail into constitutional compliance, which is what resulted in Gusman being sidelined. 

A recent report by federal monitors assigned to report conditions at the jail to the court found that the pace of improvement has started to pick up. The report noted, however, that the Sheriff’s Office still has significant work to do.

The jail’s current compliance director, Darnley Hodge, who has held the position since 2018, told The Lens that Gusman’s move reflects nicely on the work that he has done over the past few years. He said he believes that the jail is now in full compliance with the consent agreement. 

“Well that is what is outlined in the consent judgment, if the sheriff gets to a point where he feels that the compliance director has made — what are the exact words — ‘material compliance,’ he can petition the court to remove the compliance director on that basis,” Hodge said. “So I think that’s a good thing that he feels that I have made material progress. I believe that we have done more than make material progress.”

Substantial compliance

According to the order that created the compliance director position, it is meant to last “until the court determines that sustained and sustainable material progress with substantial compliance with the Consent Judgement is achieved.”

But Hodge says he believes the jail’s progress has gone even beyond that.

“I personally believe that we are in substantial compliance with 100 percent of that consent judgment,” Hodge said. “That’s just my opinion.”

One hundred percent substantial compliance, sustained for a two-year period, is what the jail must achieve to get out from under the consent judgement and no longer be subject to federal oversight.

But in the latest report filed by the federally appointed jail monitors in January, just 59 percent of the provisions of the consent decree were in substantial compliance, a significant improvement from 37 percent in the previous report, but still far short of the goal. Thirty-eight percent were in partial compliance, they said, and three percent were in non-compliance.

The monitors said that the jail had “made meaningful and noteworthy improvement” but that there was “significant work to be done to properly staff the facility, finalize training on policies, curb violence, and improve medical and mental health care.”

There were still “significant incidents of violence occurring within the facilities,” the monitors wrote, and said the jail was not sufficiently staffed to fully comply with the consent judgment. 

“Even with substantial overtime, frequently, there are housing units and control rooms with no assigned staffing,” it noted. “Further, almost daily, assigned staff leave housing units and control pods unattended for meal breaks and other duties.” 

And attorneys for the plaintiffs in the consent judgement don’t agree with Hodge’s assessment that the jail is operating fully up to the standards outlined in agreement.  

“More work is needed to bring conditions in the jail into substantial compliance with all requirements of the consent judgment and to sustain these reforms,” said Emily Washington, attorney at the Roderick & Solange MacArthur Justice Center. “The last monitors’ report acknowledged progress that has been made but also outlined the significant work remaining to reach full compliance. And we see ongoing deficiencies at the jail during our continuing enforcement efforts.”

COVID-19 creates new problems

The jail monitors were set to tour the facility again in March, but according to Hodge, that tour was cancelled in response to the coronavirus. 

He said that instead the monitors will conduct a “virtual tour” in May, and review all the relevant documents related to the jail’s management. But the details of exactly how it will work are still unclear.

“We are going to still upload the primary and secondary documentation that they need to review, and answer the questions that they have,” Hodge said. “And as far as the virtual tour, I really don’t know exactly what that will look like at this point.”

Currently, the jail is facing an outbreak of COVID-19 cases, with nearly 90 inmates who have tested positive being detained there. 70 members of the Sheriff’s Office staff have tested positive, and two have died. 13 employees of the jails medical provider, Wellpath, have tested positive.The jail is working to test the entire population in order to eradicate the virus.

But Hodge said that despite the difficulty managing the outbreaks, the jail is being run up to constitutional standards. 

“In my opinion, we are in 100 percent substantial compliance with the consent judgment,” Hodge reiterated. “That’s my opinion. The monitors might see differently, but that’s where I see it right now.”

Even if the monitors and the court agree, it will still be at the very least another two years before the consent decree is lifted. The determination of whether or not Hodge will remain in his position or if Gusman will be reinstated as the head of jail operations will likely come much sooner, and will be determined by Africk, who is overseeing the consent decree.

Emily Washington at MacArthur said they would have to wait and see what arguments end up being made in the Sheriff’s motion to determine what their response will be. 

“We look forward to the monitoring team’s updated evaluation of OPSO’s compliance with the consent judgment,” Washington said. “We will assess and respond to the Sheriff’s motion on the compliance directorship once it is filed.”