The city of New Orleans will appeal a federal judge’s ruling that it must move forward with a controversial new jail building known as Phase III. Attorneys for the city noticed their appeal in a legal filing on Tuesday evening. 

U.S. District Judge Lance Africk’s order last week, when he denied the city’s request to stop work, was unequivocal. In it, he wrote that it was “high time for the City to live up to its word” and that  “the incarcerated of Orleans Parish have waited far too long for the care they need and to which they are entitled—care that the City agreed to provide.”

But criminal justice reform groups like the Orleans Parish Prison Reform Coalition, who have long opposed Phase III, urged the city to appeal. In a campaign, they encouraged local businesses to sign on to a letter to Mayor LaToya Cantrell supporting the city’s “pursuit of all legal options available to avoid the unnecessary costs, both in dollars and human lives, of building another jail.”

The years-long, ever-shifting dispute over Phase III is part of an ongoing federal consent decree meant to identify and remedy unconstitutional conditions in the city’s jail, and specifically revolves around finding an appropriate space to house detainees with acute and sub-acute mental illness. The parties reached an agreement in 2016 that created a new position — the jail compliance director — and directed the compliance director, along with the Sheriff’s Office and the city, to come up with a housing solution for detainees with mental illness and medical needs. The solution they came up with was the 89-bed Phase III.

But the proposal stalled when the city did not finalize a plan to send to the City Planning Commission. And up until January of 2019, the city was still presenting alternative options to the Sheriff’s office. It seemed a resolution had been reached in March of that year, when the city was ordered to move forward with renovating a jail facility called the Temporary Detention Center as a stop-gap measure to house the detainees, and hire an architect to develop plans for the 89-bed Phase III as a permanent solution. 

For over a year, that work continued, and the city gave monthly updates to the court regarding their progress.  But then, in June of last year, it abruptly stopped and eventually asked the judge to grant them permission to abandon the facility altogether. The other parties objected, and months of arguments and over a week of hearings ultimately led to Judge Africk’s harsh ruling. 

A spokesperson for the city declined to comment on the decision to appeal. 

Status conference

By appealing the ruling, the city will remain in a position where it is moving forward with the design and construction of the Phase III facility while simultaneously attempting to avoid it in federal court. In a separate filing on Tuesday, the city reiterated its opposition to the facility, but also included a memo outlining the next steps in the development process — including getting necessary approval from both FEMA, as well as the City Council. 

But at a status conference in the consent decree case on Wednesday morning, a city official told Magistrate Judge Michael North that the estimated completion date of the project had been pushed back since their previous update.  When it was providing regular updates to the court up until last spring, the city had suggested that the facility could be completed by summer of 2022.  But when pushed by North to provide an estimated timeline on when Phase III might be completed, city Deputy Chief Administrative Officer Ramsay Green said that his best estimate on completion would be 30 months from now — or around summer of 2023. 

Green said that a host of issues contributed to the completion date being pushed back, and defended the new timeline.

“None of these were, frankly, unnecessary delays,” Green said. “In 2020, we had eight hurricanes, we had a pandemic, we lost 700 people. And our unemployment rate went up four times. We had to do some things and pause some things in a way that a city administration ought to.” 

Getting approval from FEMA and the City Council will take an estimated six months, Green said. After that, the city will need to hire a construction firm, which will take another three months. Then, Green said, there will be an 18 month construction timeline.

North was adamant that the project get “back on track, and everybody’s attention will be focused on completing it, and not arguing about it any longer.” 

“There is zero-tolerance for any unnecessary, or unreasonable, or avoidable delay in this project going forward,” he said. “There will be zero-tolerance. And I guess what’s unnecessary, unreasonable, or otherwise unacceptable is in the eyes of the beholder. So I just want to make that clear.”

Appeals process

If previous cases are any indication, the appeals process could take several months, if not longer. 

In an interview on Tuesday — before the city made its decision to appeal — Raphael Goyeneche, director of the Metropolitan Crime Commission said that unlike OPPRC, he was concerned about humanitarian costs stemming from the appeal, which has the potential to delay the construction of Phase III. He views the project as necessary. 

“Now, of course, the city has their legal rights, and they want to exercise those rights,” he said. “And appellate court is the next step for them. It’s costing money, not just in the sense of legal bills, but in the sense of lack of services, in danger, in the jail, to both the inmates and to the guards.”

Timing also could be an issue for the city. In another recent case out of New Orleans that was appealed to the U.S. 5th Circuit Court of Appeals  — regarding the bail procedures at Criminal District Court — the appeals judges did not make a ruling until more than a year after the appeal process began. 

If the Phase III appeal follows a similar timeline, a decision on the facility by the 5th Circuit may not come down until around the spring or summer of 2022 — when, according to Green, the city will have likely already broken ground on the facility and could be well into the actual construction.

It is also unclear what chance of success the city has on appeal. Goyeneche said he reviewed the Phase III decision and thought it was legally sound. 

“I don’t know what the basis of the appeal would be,” Goyeneche said. “I think the judgment is pretty tight. But that’s what appellate courts courts are for.”

This story has been updated with additional context on what led to Judge Lance Africk’s 2019 order.