A lawyer for the city of New Orleans argued before a federal judge Wednesday that the city should be allowed to halt work on a new jail facility — known as Phase III — until judges in the U.S. Court of Appeals for the Fifth Circuit rule on a pending appeal of a court order to continue building it.
Former U.S. Attorney Harry Rosenberg, who has been hired by the city for the case, argued at the virtual hearing that issuing a stay of the court’s January order would “prevent further depletion of resources, and will avoid what we believe will be irreparable harm if Phase III is already started … without the Fifth Circuit having a chance to to review this court’s report and recommendation.”
In an update to the court earlier this month, the city said it is continuing to move forward with the facility by seeking approval from FEMA and the City Planning Commission, and anticipates the facility may be completed by summer of 2023. Given the pace of appellate litigation, that could mean that construction on the facility will have been well underway by the time Fifth Circuit judges make a ruling.
The city has been attempting to avoid building the facility — which is intended to house detainees with acute and sub-acute mental illness, along with medical issues — since June of last year, when it filed a motion arguing that changed circumstances no longer made the facility necessary or financially feasible. It cited budget constraints due to the COVID-19 pandemic, improved mental health care at the jail, and a declining jail population as reasons why it should no longer be required to move forward with the building.
The dispute is part of a long-running federal consent decree meant to bring the jail into constitutional standards. All the other parties to the consent decree litigation — including the United States Department of Justice, the Orleans Parish Sheriff’s Office, and civil rights attorneys with the Roderick and Solange MacArthur Justice Center — who represent detainees in the jail — want the city to build Phase III without delay.
The city had previously agreed to a court order to build Phase III and was providing monthly updates on its progress throughout much of 2019 and 2020. But last summer, Mayor LaToya Cantrell’s administration abruptly stopped work and formally requested to be let out of the order. After over a week of hearings, the court issued a scathing report, and U.S. District Court Judge Lance Africk ordered the city to move forward with Phase III.
The chances of a district court judge now issuing a stay appears unlikely. One of the considerations the Magistrate Judge Michael B. North, who is handling the matter for Africk, must make is whether or not the city is likely to succeed on appeal — meaning that to grant the stay, the judge must find there is a good chance his own recommendation will be overturned by the Fifth Circuit.
In addition, North has been adamant that the construction process not be delayed any further. And he has repeatedly criticized the city’s legal arguments as haphazard and contradictory. At a status conference in February, he told the city that he would have “zero-tolerance for any unnecessary, or unreasonable, or avoidable delay in this project going forward.”
On Wednesday, North spent nearly the entire hearing questioning Rosenberg on various aspects of the city’s arguments — none of which he appeared particularly friendly to. He characterized the “linchpin” of the city’s argument — that under a federal law on prison reform litigation, there was an “automatic stay” put in place following the city’s failed motion to stop Phase III work last year — “an 11th-hour argument concocted to try to avoid what appears to be the obvious implications of the manner in which the city proceeded in this case.”
Rosenberg again pointed to a declining jail population — which has recently dipped to its lowest level in decades — as evidence that the facility is not necessary and that the appellate court is likely to side with the city.
He also said that recently implemented policies of District Attorney Jason Williams suggest that the population will continue to decline.
“As I’m sure you’ve seen, the new district attorney has indicated his intention to not prosecute a number of low offenses, which I think will inevitably complement the city’s efforts to further reduce the population at [the Orleans Justice Center],” Rosenberg said.
North responded that the jail population has declined before, but then proceeded to go back up. Rosenberg said he thought that was unlikely this time.
Criminal justice reform advocates throughout the city — including the Orleans Parish Reform Coalition, the Vera Institute of Justice, and the Orleans Public Defenders — have all organized against the construction of Phase III. They argue that the city should instead invest resources in mental healthcare outside of the criminal legal system, and that the current jail could be retrofitted to accommodate the detainees that require care.
In 2017, Williams, then a New Orleans city councilman, called moving forward with the Phase III facility a “moral obligation” in order to “humanely house the inmates at the Orleans Justice Center who have mental health needs.” But he too has now come out against it.
“We don’t need it,” Williams said at a forum earlier this month. “We can’t afford it. And based on my first 80-some odd days and looking at the dockets, I think that we are not going to fill it. … It is one of the worst times for our city to spend that amount of money on something that is not investing in people. That’s my position.”
