Councilwoman Shelley Midura is fed up. She says the U.S. Department of Justice's (DOJ) recent report accusing Orleans Parish Prison (OPP) of violating inmates' rights is yet another example of the jail having little external oversight, and how the sheriff provides scant knowledge on prison operations. The City Council holds the pursestrings to fund the prison, and Midura thinks that tying prison funding to better reporting practices is the only way to motivate Orleans Parish Criminal Sheriff Marlin Gusman to open up OPP to public scrutiny.
"I have been trying for three years now to get involved by linking the money that we give to the sheriff to accessing information," Midura says. "How much does he spend? Where is he getting all his funding from?"
Midura's frustration is palpable as she discusses how Orleans Parish Criminal Sheriff Marlin Gusman has submitted annual half-page budget proposals to the City Council with few details and little explanation — and that money is not the solution to all of OPP's troubles. "That's an easy way for him to get out of fixing the problems," Midura adds. "You can't justify lack of funding for abusing prisoners."
In 2009, the city adopted a budget of $22,766,556 for the criminal sheriff. In 2008, the figure was $27,753,156. These amounts are translated into a per-diem for each city prisoner OPP houses.
In a written response to Gambit's questions concerning the DOJ report and prison oversight, Gusman disagrees with the report's conclusions. He says research for the report was conducted during the difficult days of OPP's post-Katrina recovery. Despite the challenges and a lack of funding, Gusman writes, "Our inmates have been honored and respected."
Unfortunately for the sheriff, this isn't the first time in post-Katrina New Orleans that experts and the media have decried how prisoners are handled at the jail, which averages a little more than 3,000 inmates a day. OPP lost its accreditation with the National Commission on Correctional Health Care last year. In 2007, the Vera Institute of Justice reported on overcrowding at the jail, and later that same year, National Public Radio produced a segment about squalid conditions there. Local prison reform advocates say the message is clear: It's time for Gusman to open the doors at OPP and let the public see how its tax dollars are being spent.
Mary Howell, a New Orleans civil rights attorney, says many of the DOJ complaints — a high inmate-to-guard ratio, improper and inadequate psychiatric and medical care and the lack of a policy to separate violent inmates from nonviolent offenders — are chronic, pre-dating the 2005 levee failures and Gusman. She feels these issues could be remedied easily, but the federal government, the state and the city have not effectively dictated terms under which they will fund the OPP.
"Any of the entities that contract with the sheriff's office could require as a condition of that contract, that the sheriff enter into certain terms and conditions," Howell explains. "Right now, it's per diem. So it's, 'We're going to pay you so much money per diem to house prisoners, and we're going to leave it all up to you.'"
The federal government pays Gusman $43 a day for prisoners awaiting trial on federal charges; the state, $26.39 for Louisiana Department of Correction inmates and the city allocates $22.39 a day for every city offender in the jail. While Gusman has said none of the per diems are sufficient, Howell says those who pay have the legal right to demand that the sheriff address their concerns. The feds carry a big stick when it comes to this kind of negotiation because, according to federal statute, violations of prisoners' constitutional rights can cause the U.S. government to take control of the institution.
"Under [the Civil Rights of Institutionalized Persons Act of 1997], the DOJ has all power that would flow from a civil litigation, including, and probably most extreme of those powers, basically placing a law enforcement agency in receivership." Howell says.
That seems unlikely. Even with the controversial history of the city's criminal justice system, the federal government has never taken over the prison, the courts or the police department. Depending on DOJ's aggressiveness, it would be more likely for the feds to file a lawsuit and pressure OPP into agreeing to a consent decree, a legally binding agreement that would establish standards and goals at the prison and would mandate a federal monitor to ensure improvements are made.
In a 1970 ruling on the class-action suit Hamilton v. Schiro (Victor Schiro, New Orleans mayor at the time), a federal court declared that conditions at OPP were unconstitutional and issued a decree that included population caps at the prison. The decree is still used today, but it is mostly employed by the sheriff to force the city to pay the per-diem for its prisoners.
On the state side, the Louisiana DOC has an agreement with OPP to house some of its prisoners. If the state decided to pull out its inmates because of constitutional violations, the jail would lose a valuable funding source, which pays more per prisoner than the city. Howell says this has been done in the past.
The City Council also could demand that Gusman institute reforms regarding city inmates. City prisoners in OPP are either traffic offenders or people who allegedly have violated the municipal code. The New Orleans Municipal Court handles these cases and, as the Vera Institute report points out, the majority are nonviolent, "quality-of-life offenses" such as criminal mischief, tampering, trespass, property damage, public drunkenness and prostitution. In most of these cases, New Orleans police officers could issue summonses. Instead, they arrest the majority of suspects.
This approach infuriates Midura, who thinks the consent decree has outlived its usefulness and has become an incentive for keeping people in jail as long as possible. She also believes any increase in funding needs to be coupled with reform.
"That report shows just how detached we are from what's going on over there," Midura says.
Howell thinks it's essential for the City Council to pass a law creating an office of independent monitor for the OPP. For the monitor to be effective, the sheriff would have to cooperate and create a clear chart of accountability that shows who is responsible, for example, if prisoners aren't getting their medications, and what will happen to them. Ultimately, the buck would stop with Gusman, and all of the monitor's reports would be available to the public.
Midura sees potential in Howell's idea, but she doesn't think the current council has the political will to make such a stand. She says it will take four votes to pass any ordinances for reform, and that leaves her three votes short.
"I have been fighting this battle by myself," says Midura, who is not seeking re-election when her term ends in May.
If only she had a fellow representative like former Councilman Marlin Gusman. When Gusman ran for criminal sheriff and won in 2004, he publicly stated that the Orleans Parish Prison would benefit from an independent monitor. Gambit asked Gusman if he still agrees with that assessment, and he wrote in an email response, "I am in favor of an independent monitor, in addition to all of the oversight we already have, and I have reinstituted our efforts, which were sidetracked by Katrina." If the City Council and the sheriff work together on such an effort, an open and transparent city jail could become a reality. Otherwise, DOJ could step in and take over OPP.
As to whether or not the public really cares about what goes on behind the city jail's bars, Howell says that one inmate inside translates into many more people being affected outside the prison walls.
"We have one of the highest incarceration rates in the world in Orleans Parish, and what that means is every person who's in there has family and has employers," Howell says. "There's a lot more people who care what goes on down there than you may have been led to believe."