Wednesday, April 3, 2013

OPP consent decree fairness hearing day 3: Judge skeptical of key city arguments

Posted By on Wed, Apr 3, 2013 at 12:56 PM

In a hearing this morning, U.S. District Court Judge Lance Africk rejected some of the city of New Orleans' key arguments against the adoption of a federal consent decree for Orleans Parish Prison.

Today is the third day of a hearing to determine the fairness and necessity of a proposed consent decree for OPP. The city is fighting the adoption of the agreement citing expected costs running into the tens of millions annually. Mayor Mitch Landrieu says those expenses would force mass layoffs or furloughs of essential city employees.

Former U.S. Attorney Harry Rosenberg, who is on the city's legal team, cited a state law mandating that prisoners' not receive better treatment than the working poor during his cross-examination of Dr. Bruce Gage. Gage, a psychiatrist and expert witness for the plaintiffs, asserted in his testimony yesterday that mental health care at Sheriff Marlin Gusman's jail is dangerously inadequate.

"Are you aware that the working poor in New Orleans cannot get access to mental health care within 24 hours?" Rosenberg asked.

Africk asked why Rosenberg was comparing prisoner care to resources available to the general population, and Rosenberg quoted a state law mandating that "no inmate shall have a standard of living better than the state poverty level." (Note: Plaintiffs note that even that law requires that conditions conform to the U.S. Constitution.)

"So your argument is that since the general public can't get mental health treatment, the prisoners shouldn't get it," Africk said. "I think that's just wrong."

(More after the jump)

Africk quoted from the U.S. Supreme Court's 2011 decision in Brown v. Plata: "To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates 'may actually produce physical "torture or a lingering death." ' "

"Do you not think that Orleans Parish Prison has to comply with the U.S. Constitution?" Africk asked Rosenberg. Rosenberg said that he does not believe the constitution should be "jettisoned," but rather weighed against state law, which, he said should also be respected.

Africk, however, said that he did not believe that the public's poor access to mental health treatment in New Orleans — which he said was an unfortunate situation for the community — justified denial of care for prisoners.

Earlier in the hearing, when Deputy Mayor and Chief Administrative Officer Andy Kopplin was on the stand, Africk likewise dismissed his testimony that the city was not actively involved in the negotiations leading up to the consent decree in its current form. Kopplin acknowledged that the City Attorney's Office was present for a limited number of meetings on the issue and privy to some email discussions. But that did not constitute full and intensive involvement as the city had in negotiations leading up to the New Orleans Police Department's federal consent decree (which the city is now also fighting).

"Those negotiations absolutely took place, with the City Attorney's Office," Africk said.

Africk also introduced into evidence the minutes from an October 15, 2012 status conference, which representatives from the city attended. The minutes include the following line: "There is also no dispute that the City of New Orleans is responsible for funding those efforts that must be undertaken, pursuant to the proposed consent judgment, to remedy existing conditions."

"I never received an objection" to that, Africk said.

Kopplin testified that the expected costs of the consent decree would "devastate" city operations. He reaffirmed the city's position that the U.S. Department of Justice should appoint a federal receiver to take over the jail from Gusman.

Today's testimony is expected to go well into the evening, possibly including testimony from Gusman himself. For live coverage follow @the_GambitLive on Twitter.

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