How Phase III Came To Be
Though they once applauded the jail’s federal reforms, community groups and political leaders in New Orleans oppose a key mandate: the construction of a $109 million mental health jail.
This story was produced in partnership with The Lens.
Mayors agreed to it, opposed it, agreed to it again, and opposed it again. Multiple working groups met to produce lengthy reports on it, and possible alternatives. Advocates tried to stop its construction by blocking zoning permits, funding allocations, and attempting to influence FEMA environmental-impact statements. They camped out in front of City Hall, organized a letter-writing campaign to a federal judge and held rallies and second lines in opposition. A reform candidate ran for sheriff touting her disapproval of it — and won.
The City Council passed multiple resolutions denouncing it and requested an audit of its costs. The sheriff said she wouldn’t sign the proper paperwork. It has been called a “glass hellscape” and the “goofiest thing.” Its price tag doubled. Judges heard – and denied – at least three legal challenges to it in three years.
Despite it all, pile-drivers are stationed at Perdido Street to start building it.
Phase III is an 89-bed mental health annex to the New Orleans jail with an infirmary, laundry, and a visitation area. It will stand between the current jail —the Orleans Justice Center (OJC) — and the jail’s kitchen warehouse. That spot is right where former Sheriff Marlin Gusman originally envisioned the expansion more than a decade ago.
Four years ago, U.S. District Judge Lance Africk, who oversees the jail’s long-running federal consent decree issued his first order for the city and sheriff to move forward with the facility. Amid near-uniform political opposition from local officials, Africk — backed by federal justice officials, civil rights attorneys representing incarcerated people, and monitors appointed to track constitutional compliance — has not waivered from his stance that Phase III is the only way to address an ongoing humanitarian crisis at the jail: the inadequate care of people with serious mental illness.
To both its opponents and its proponents, the jail and its proposed addition are symbolic of painful inequities within the city – inequities that residents worked hard to put behind them as they rebuilt after Hurricane Katrina.
To opponents, Phase III is a step backward in the city’s post-Katrina efforts to decarcerate New Orleans and it perpetuates the misguided use of the jail as the city’s largest mental-health provider.
For those who support the construction, the continued opposition to Phase III has come to represent the ongoing apathy and unwillingness of city leaders to care for incarcerated people with serious mental illness.
“While we have been engaged in endless debate and hand-wringing, inmates in the care of the Sheriff have suffered and continue to suffer needlessly,” U.S. Magistrate Judge Michael North, who handles most Phase III-related matters for Judge Lance Africk, wrote in October, as he denied the most recent legal challenge to the facility.
Africk has ordered the city and Sheriff Susan Hutson to move forward with construction and has threatened “severe sanctions” for any additional delays. Hutson declined an interview request for this story, as did an official within the administration of Mayor LaToya Cantrell.
MORE THAN A DECADE AGO, in 2012, when the Southern Poverty Law Center filed the civil rights complaint against Gusman that led to the federal consent decree, its lawyers cited several deaths to illustrate that OPSO had a “policy and practice of denying access to constitutionally adequate mental-health services.”
One of those who died was Cayne Miceli, in 2009. After biting a security guard at a hospital where she’d sought care for an asthma attack, she was booked into the jail for disturbing the peace. In her cell, Miceli, who had a history of panic attacks and depression, attempted to hang herself with her jumpsuit. Jail staff responded by strapping her down on a metal bed with five-point restraints, ignoring her claims that she was having trouble breathing. When she broke loose from some of the restraints, deputies attempted to hold her down. She went limp and could not be revived.
The consent decree was seen as a way to make the facility safer, through updated policies and monitoring. On top of that, policymakers believed that a more modern, smaller jail would further address sightline and safety problems within the city’s outdated jail complex. Then, in 2015, the new four-story, $145 million building opened —- without the spaces to care for many medical and mental-health needs.
“Courts are not built for this. I do not think that the decision involved, in meaningful ways, impacted communities — either those incarcerated or those who live in the city.”
Andrea Armstrong, Loyola University professor
Today, despite the consent decree and the new building – two key proposed remedies – the deaths have continued. Twenty-two people have died while in the city’s custody since 2014, many of them suicides and overdoses.
As promised solutions fell short, some city residents and people held in the jail became jaded about the possibility that city jailers – and the seasoned federal justice-department officials brought in to help them – could ever manage the New Orleans lockup with humanity and efficiency.
Advocates who once applauded the jail consent decree, but oppose Phase III, are frustrated that the decade-long process to reduce the local jail population led to this expansion of the carceral footprint in New Orleans. Penal-institution settings will never provide adequate care for people with mental illness, they argue, while urging more resources that are devoted to keeping people out of jail and treating them in the community.
Some critics look at this struggle and its court-mandated construction and see the limitations of federal-court oversight, in guiding local decisions about local jails.
To Andrea Armstrong – a professor at Loyola University who co-chaired Hutson’s transition committee and was recently granted a MacArthur “Genius” Grant for her work on jail transparency – the order to build Phase III in face of staunch opposition has exposed a “critical flaw” in prison-reform litigation.
“Courts are not built for this,” Armstrong said of the order to build Phase III. “I do not think that the decision involved, in meaningful ways, impacted communities — either those incarcerated or those who live in the city.”
North, the federal magistrate judge, has agreed — to an extent.
“I think it’s important to note here that we are not insensitive to the valid and compelling arguments ….that jails are singularly unsuited as a first option for housing and treating mentally ill people and that the City of New Orleans lacks the treatment infrastructure to properly care for those in the community who suffer from mental illness,” North wrote in 2020.
But it’s beyond the court’s scope to explore those broader community shortcomings, North continued. “Unfortunately, those problems cannot be addressed in the context of this motion…for us to try to do so would be to ignore the plight of citizens with medical needs and mental illness who are actually in the jail now (and those who will be one day).”
IN 2014, FORMER SHERIFF MARLIN GUSMAN PROPOSED PHASE III as a sprawling, 160,000-square-foot facility with a capacity that ranged between 380 and 764 beds. It would house incarcerated people needing specialized mental health care, but also inmates from the jail’s general-population.
Advocates saw his plan as a backdoor jail expansion. As Gusman committed, under pressure, to a cap on jail beds, critics believe that he pinned his hopes for expansion on a mental-health facility, to increase his cash-flow and maintain his political influence.
In the end, advocates pushed successfully for an overall bed cap, warning that Gusman and future New Orleans sheriffs would otherwise expand the city’s carceral footprint.
That argument has history on its side. From 1974 to 2004, then-Sheriff Charles Foti expanded the jail, then known as Orleans Parish Prison, from a single building to the sprawling complex in Mid-City inherited in 2004 by his successor, Gusman.
To fill thousands of jail beds – and get paid for doing so – Foti pursued contracts to house state and federal prisoners, urged more punitive law-enforcement practices that would put more people in jail for low-level offenses, and offered up his captive workforce to help with public works projects and events throughout the city. Many people were incarcerated for minor offenses like traffic violations, low-level drug charges, and public intoxication. In the years before Katrina, on an average day, the prison held nearly 6,500 people, a staggering number for a city of about 480,000 people — and about five times the national incarceration rate.
“New Orleans is the most incarcerated city in the most incarcerated state in the most incarcerated country in the world,” said Mayor Mitch Landrieu, describing it in hindsight a decade after Katrina, as his administration worked to reduce incarceration and set an appropriate jail size for the city.
In 2005, OPP was inundated by Katrina’s storm surge and the failure of the federal levees that caused catastrophic flooding across New Orleans, particularly the Mid-City area. Gusman had no intentions to evacuate the facility — or a plan, had he wanted to. With water rising to chest-height in the facility, people told of being trapped in their cells for days without food, drinking water, or medical care. Others reported being beaten and maced by the few deputies who did not abandon their posts. Gusman later denied abuse allegations, calling them fabrications of “crackheads, cowards, and criminals.”
The NOPD was in freefall, too. Post-Katrina killings by NOPD were among the most egregious acts of police violence in U.S. history. Officers riding onto the Danziger Bridge opened fire on a crowd fleeing Katrina’s floodwaters, killing two people including an intellectually disabled teenager, and wounding four others.
In 2010, high-ranking NOPD officers—including a homicide detective who concocted fictional witnesses named “Lakeisha Smith” and “James Youngmann” to justify the Danziger shootings—were indicted in federal court. The same year, the NOPD entered into a consent decree with the U.S. Department of Justice.
AT THAT TIME, IN 2010, WITH THE CITY FOCUSED ON REBUILDING, reforms seemed possible. National criminal-justice leaders poured into New Orleans, offering research, resources, and insights on what had long been a broken justice system. Community groups that included formerly incarcerated people spoke out about the injustices they’d experienced.
“This was an opportunity to do what we came to New Orleans really to do — which was to not just rebuild, but to rethink the system, which had just gotten all awry.”
Jon Wool, former director of the Vera Institute of Justice
Advocates and city leaders pushed for a range of criminal-justice reforms, including a revamping of the public-defender system, changes in local criminal ordinances that mandated summonses in lieu of arrests, and a pretrial-services program to help magistrate judges assess each arrested person’s risk level, if released from jail before trial. When combined, those changes began to pare down the jail population to a fraction of what it once was.
In 2010, as city leaders discussed plans to build a new facility to replace the sprawling and badly flooded OPP complex, advocates initially suggested that the jail should be limited to 850 beds — in line, they said, with the national average for a city the size of New Orleans.
“This was an opportunity to do what we came to New Orleans really to do — which was to not just rebuild, but to rethink the system, which had just gotten all awry,” said Jon Wool, former director at the Vera Institute of Justice, which opened a New Orleans office after the storm and began working on reforms in a place that he describes as “systemically deranged.”
In February of 2011, following the recommendations of the mayor’s jail-size task force, the New Orleans City Council passed an ordinance that gave Gusman permission to build a brand new jail — with some stipulations. Upon completion of the new, 1,438-bed facility, the sheriff should decommission the old OPP buildings within 18 months, stipulated the Council, which also required that the new facility be built in a way that accommodated all incarcerated people — including those who needed help with substance abuse and mental health, but excluding those with acute mental illness.
The 1,438 capacity was determined by the mayor’s jail-size task force, which included the district attorney, criminal-court judges and Gusman himself, though the sheriff was never shy about his skepticism about whether reforms would actually reduce the jail population as deeply as advocates claimed. Over the years, he had floated various bed counts that he thought more appropriate, including plans sent to an architect in 2007 that envisioned an 8,000-bed facility. By 2010, however, he was pushing for a 4,300-bed jail.
Advocates, backed by experts whose data projected much smaller populations for the Orleans jail, demanded a bed cap. “Limiting a number of beds in the jail was always a strategy we use to force system actors to think differently when it comes to incarceration,” said Sade Dumas, former executive director of the Orleans Parish Prison Reform Coalition (OPPRC).
OPPRC convened town hall meetings, distributed handouts, and packed City Hall to successfully demand a smaller jail, linking the facility’s injuries and deaths to its larger size. “A smaller jail is a safer jail,” they contended.
Gusman never saw the cap as the final say on how large the jail should be. Then he went on to build a jail that lacked medical and mental-health spaces, just as his spokespeople said he would from the start.
“That was Gusman’s gambit,” Wool said. “And no one took him to task for it.”
GUSMAN LISTENED TO ARGUMENTS FOR A SMALLER JAIL from judges, council members and community leaders— but never stopped pursuing the second building he’d always wanted to place between OJC and its kitchen.
At first, the task force convened by Mayor Landrieu in 2010 recommended giving Gusman the go-ahead for a jail that was “at least” 1,825. The group then continued its discussions on each subpopulation – those poised for re-entry, juveniles who were being charged as adults, etc. – to ensure that the population could be pared down to fit the new jail. Yet by mid-2012, even as construction of the new jail was underway, Gusman was quietly pitching the Landrieu administration about the possibility of building a 600-bed Phase III.
Advocates suspected that Gusman and some city leaders were conspiring to expand the jail population beyond the cap. “It’s not surprising to me how secretive these people are,” Norris Henderson, executive director of Voice of the Experienced, a grassroots organization founded and run by formerly incarcerated people, said at the time.
Landrieu’s administration at times toyed with moving forward on a smaller Phase III, but later stood firmly behind a retrofit of the fourth floor of OJC as a mental-health and medical facility, until a court-appointed jail compliance director convinced him and others to commit to the 89-bed facility in the works today.
In 2013, midway through construction of the City Council-approved 1,438-bed jail, the DOJ and civil rights attorneys accused Gusman of building the jail in a way that intentionally did not include areas for medical or mental health care. In 2015, the Landrieu administration briefly attempted to intervene by issuing a stop-work order to the facility “until the City can verify that the Sheriff has properly addressed these vulnerable populations in the new jail facility.” But the order to halt was tossed out days later by a state court judge. Gusman called the move a “political stunt” by Landrieu.
What’s certain is that Gusman never believed that reform efforts would reduce the jail population. “As crime skyrockets, the city continues to claim that the jail population will fall, and in this latest instance, to numbers which have not been seen in this city in several decades,” Gusman’s attorneys wrote in 2015.
To make his new building necessary, Gusman was intentionally violating the City Council ordinance — which required that the jail be able to accommodate nearly all inmates, advocates alleged. “His objective was never to have a smaller jail,” Dumas said. “I think Phase III was his plan all along. And OJC was constructed in a way that forced that to be enacted.”
WHEN THE NEW 1,438-BED JAIL FINALLY OPENED IN 2015, Gusman dubbed it the New Orleans Justice Center and heralded it as a “new day” for the city’s criminal justice system.
“OPP’s closing should send a message to everyone that the old ways of doing it are over,” Gusman told reporters.
But soon, problems that had long plagued OPP emerged at OJC.
In March 2016, 61-year-old Cleveland Tumblin hung himself in a shower facility, after being flagged for a mental health follow-up visit that never arrived. Tumblin’s death was one of several serious incidents that led civil rights attorneys and the DOJ to file a motion for a federal receivership, to seize control of the jail from Gusman. In the spring of 2016, then-U.S. Rep. Cedric Richmond attempted to intervene on Gusman’s behalf, asking the DOJ to halt its takeover efforts.
But a few months later, Gusman agreed to appoint a compliance director to manage day-to-day operations of the jail, as part of an agreement forged with the DOJ and The Roderick and Solange MacArthur Justice Center, whose attorneys represent the people locked up in the jail.
Attorneys for the MacArthur Justice Center declined an interview request and did not respond to questions for this story. But in recent years, their consistent stance has been that a laser focus on jail population does not address their clients’ care. In 2020, MacArthur lawyers told The Lens that while they support “any efforts to provide mental health care to New Orleanians through means outside of a jail facility, and similarly encourage further reductions in the Orleans jail population,” those efforts were not enough. “The problems of unsafe housing and inadequate treatment for people with serious mental health needs in OPSO custody has not been resolved by population-reduction efforts alone.”
A temporary fix, proposed by Gusman in 2014 after Africk determined OJC was not suited to house detainees with acute mental illness, was to ship male prisoners with acute mental-health needs to a state prison, the Elayn Hunt Correctional Center in St. Gabriel, an hour outside of the city.
As part of the new agreement, the compliance director would submit a plan to the court on how to best care for detainees with serious mental illness. To inform that plan, the first compliance director, Gary Maynard, said he met with “with advocacy groups, community groups, OPSO employees, Correct Care Solutions (CCS), architects, City administration, City Council Members, the Federal Monitors, the Federal Emergency Management Agency (FEMA), and citizens of New Orleans.”
Maynard weighed several options for housing detainees with serious mental illness, including a retrofit of the fourth floor, and that era’s incarnation of Phase III, a 388-bed facility pushed by Gusman.
Ultimately, in early 2017, he recommended an 89-bed Phase III.
Maynard, an independent, court-appointed compliance director who answered only to Africk, made headway where others had failed.
Africk put his weight behind Maynard’s proposal and the Landrieu administration begrudgingly approved Maynard’s suggestion, and the City Council voted to have the City Planning Commission review the proposal, over the objections of then-City Councilmembers LaToya Cantrell and Susan Guidry, who supported a retrofit of the jail’s fourth floor. The Council instructed the Commission to consider decommissioning 89 beds from Orleans Justice Center as part of its review.
But for four years, the City Planning Commission didn’t submit a recommendation to the Council for approval, and to this day the Council hasn’t approved any zoning changes related to Phase III. In 2019, when the state Department of Corrections decided it would no longer house city detainees with mental illness, it suddenly became urgent to determine where they should be housed.
Suddenly, it became urgent to determine where they should be housed.
Gusman proposed repurposing one of the old jail complex’s buildings as a temporary jail for people with mental illness, which would have increased the bed count to 1,731. After hearing from advocates, angry at the suggestion of more beds, the City Council allowed the new temporary arrangement, but shifted from counting beds to people, setting a new total “population cap” for the entire OJC complex at 1,250.
It was a temporary fix that addressed few bigger issues. “To be clear, this legislation does not address the actual Phase III building nor any proposed or possible retrofit; those matters were not before us,” Councilman Jay Banks said at the time.
THE OVERSIGHT OF THESE NUANCES fell to the administration of the newly elected mayor, former Councilmember LaToya Cantrell, a Phase III opponent. While she pushed the sheriff to consider other alternatives, in early 2019 she reluctantly agreed to move forward with Phase III. For nearly more than a year, city staff met with architects and filed monthly updates with the court.
But in June of 2020, the city abruptly and unilaterally halted construction planning for Phase III. Its lawyers filed a motion into the consent-decree litigation arguing that because of changed circumstances — including a loss of revenue due to the COVID-19 pandemic and a declining jail population — the city should be allowed to withdraw from its agreement to build Phase III.
In its motion, the city also maintained that its jail was already providing constitutional care to people with mental illness. That assertion flew in the face of reports from federal monitors, who were still finding that mental healthcare was deficient. On top of that, the city did not present one alternative to Phase III, leading North to conclude that they were asking “to be allowed to do nothing, indefinitely.”
Wool acknowledged that the city went about trying to stop Phase III the wrong way. “They botched it,” he said.
Some observers say that it was then that the city lost the trust of some of its potential allies in the consent-decree struggle — including MacArthur’s civil-rights attorneys and the DOJ. Magistrate North was also exasperated by the move, writing in 2020 that he had “lost all faith in the city as a litigant.”
But the move by the Cantrell administration galvanized other stakeholders, including jail-size reduction advocates, who were already discussing other options to provide mental-health care for system-involved people.
By then, the failures of the brand-new OJC had become clear, serving as a warning that Phase III – or any other buildings – could not resolve the problem of poorly run jails in New Orleans.
“That’s the same situation we’re in today with this insistence on having a certain kind of state of the art, quote, unquote, Phase III, to address the needs of people with serious mental illness. It won’t (address those needs) even if it were, in fact, well designed,” Wool said. “We just can’t seem to learn that lesson.”
Even with Phase III, though, there are structural deficiencies in the current jail that need to be remedied — including more rooms for group and individual counseling.
Had city officials made more of a holistic effort, they could have reached alternative, less costly solutions, Wool believes. “Nobody really did the work to develop a retrofit plan to the level that needed to be developed,” he said, “With drawings or at least schematics and pricing, something that could truly be vetted. And that was a major failure.”
THERE IS STILL ONE MORE MORE PHASE III ISSUE PENDING before the 5th Circuit Court of Appeals – a legal challenge filed by Hutson, the sheriff, arguing that Africk does not have the authority to order the facility under a federal law called the Prison Litigation Reform Act.
But construction will likely move forward.
To Dumas, from the Orleans Parish Prison Reform Coalition, the imminent construction of Phase III demonstrates both the limits and the triumphs of community organizing around the jail.
The construction of Phase III is not a total defeat, Dumas said. After all, it was pressure from advocates that pushed Landrieu to create the task force. And it was pressure from advocates, backed by facts and reports to prove their points, that prevented the jail from becoming the much larger facility that Gusman envisioned.
“Our community should still be proud of the long fight,” Dumas said. “Because if not for that, we would have been spending a lot more to jail people.”
Dumas remains concerned that Phase III will use resources from “already scarcely resourced mental-health care in the city.” But she is encouraged that the new facility was kept to 89 beds, which “far beats” the hundreds of beds proposed by Gusman, she said.
“When I think of Phase III, I think, ‘Something went terribly wrong here.'”
Norris Henderson, executive director of VOTE.
Henderson, the executive director of VOTE, is not quite ready to concede that the battle against Phase III is over. Over time, he’s watched allies in this fight fall away. Finally, this summer, he saw many city officials buckle, unwilling to stand up to Africk and North and the power of the federal court, he said.
So, in August, when the Cantrell administration bypassed City Council approval and quietly allocated funding for Phase III, Henderson brought the fight himself, along with his group.
VOTE filed a lawsuit attempting to block the mayor’s allocation.
That suit was tossed out in November, with the judge praising VOTE for bringing the lawsuit but saying that the city, having been placed “on the horns of a dilemma,” moved the funds appropriately.
Any day now, the pile-driving will begin, in that familiar section of Mid-City where former Sheriff Charles Foti turned every building he could find into a jail, until his “campus” included 12 buildings.
By contrast, the heavy equipment next to Perdido Street will be laying the foundation for a single, 89-bed Phase III building.
It may be this fight, over several dozen beds, that best exemplifies the determination of advocates and some city officials to reverse the days when New Orleans incarcerated more people than anywhere else in the nation.
Because, by nearly every metric, the post-Katrina decarceration efforts over the last decade were overwhelmingly successful. In 2020, during the early days of the COVID-19 pandemic, the city’s jailed population declined to under 750 — the lowest it had been in decades.
But in recent months, it has moved up, past 1,200. It’s now threatening to surpass the population cap set in 2019.
Underneath that uptick are the unresolved roots of the Phase III battle, said Henderson, with VOTE, who believes that 89-beds in a jail setting do little to resolve — and may even exacerbate — larger issues.
“When I think of Phase III, I think, ‘Something went terribly wrong here,’” he said.
As Henderson looks back at the root causes, he sees the behavioral and mental-health crises that surfaced after the COVID lockdowns. He sees the gutting of the state mental-healthcare system spearheaded by former Gov. Bobby Jindal as Jindal took office 15 years ago.
He also sees the ongoing failure by local leaders to provide alternatives outside of the jail for people who are struggling.
“As opposed to treating them and a hospital or some detox, they put them in jail — and sometimes it may escalate,” he said. “We need to treat people on this side of the fence, before they even get to the other side.”
Phase III, on the other side of the fence, symbolizes the work that still remains, he said.
Correction: This story has been updated to reflect that in 2017 the City Council instructed the City Planning Commission to review a proposal for Phase III, along with the possibility of decommissioning 89 beds from OJC. The City Council has yet to approve any zoning changes related to Phase III.