Down by Law

Orleans Parish Prison before and after Katrina

By Barry Gerharz and Seung Hong

This article is from the March/April 2006 issue of Dollars & Sense: The Magazine of Economic Justice available at http://www.dollarsandsense.org

This article is from the March/April 2006 issue of Dollars & Sense magazine.

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When the levees broke in New Orleans, floodwaters flowed into Orleans Parish Prison (known to locals as "OPP"). During and after the storm, some prisoners were locked in first-floor cells as the waters slowly rose. Meantime, the eighth largest penal institution in the United States became even more crowded as smaller parish jails carried out emergency evacuations and sent their inmates to OPP. Guards were nowhere to be found. Prisoners spent days with little or no food and water. Many stood in sewage-filled water up to their waists or necks. Adults and juveniles were detained together, forcing youth to compete for resources with larger, stronger adults.

After eventually being rescued, or in some cases breaking free from their cells and tiers, the prisoners were moved to a nearby overpass to sit in the hot sun. From there, most prisoners--convicts imprisoned for violent offenses and pre-trial detainees alike--were transported almost 70 miles to the Hunt Correctional Facility in St. Gabriel, La., and deposited in an open field, some of them for two or three days. From Hunt Correctional, the prisoners were randomly placed in at least 35 facilities around the state, including other parish jails, private prisons, and state prisons.

Intake at OPP (photo credit: Seung Hong)

New Orleans attorney and activist Phyllis Mann describes who was in OPP at the time of the hurricane:

"[O]ne young man who had been arrested for reading Tarot cards without a permit ... young women who were pregnant; young men and women who sadly chose the wrong weekend to try out an illegal drug; middle-aged soccer moms who just had not gotten around to paying that speeding ticket ... and then there were the poor of New Orleans who were arrested for sleeping on the street (obstructing public passage), 'brother can you spare a dime' (begging)."

OPP had flooded before. When there was severe flooding in New Orleans in 1995, for instance, prisoners were moved out of OPP to Louisiana Department of Corrections (DOC) facilities. At least two days before Hurricane Katrina smacked into New Orleans, the DOC offered OPP assistance in evacuating the prison, according to a DOC spokesperson. OPP officials replied they were okay, that they would hunker down. When a Human Rights Watch investigator asked an OPP spokesperson why the facility did not take up the offer its neighboring parishes embraced, she replied that OPP had more inmates than the surrounding parishes that opted to evacuate their jails in advance.

The sheriff ostensibly had an evacuation plan, yet questions remain. Why weren't at least first floor prisoners moved to higher floors? Why didn't officials make the plan public? When asked about the evacuation plan, OPP's spokesperson told an investigator that the plan was on "this guy's computer" but believed the computer was flooded during Katrina. Weeks later the ACLU requested the evacuation plan under a public records statute. The group was given a scant two-page document (see p. 42) that does not address how OPP buildings would be evacuated in the event of an emergency; what responsibilities state and local agencies had to coordinate a response to an emergency; how food and potable water would be distributed to staff and prisoners during an emergency; or what training staff members and prisoners should receive on proper evacuation procedures.

The New Orleans criminal justice system in the aftermath of Katrina is not a pretty sight. Even before the hurricane the system was a failure. It violated the humanity and civil rights of thousands of people while doing little to make the streets safer. The money and resources that taxpayers poured into it were wasted by political patronage and outdated practices. However extreme, the New Orleans criminal justice system exemplifies trends that can be found across the United States. The explosive growth of incarceration since the 1970s; the substitution of financial for public-safety motives for mass incarceration; the racism of violent policing, inadequate indigent defense, and excessive and unnecessary pretrial detention; shockingly inadequate healthcare and little pretense of rehabilitation: these endemic problems were merely made more visible by Katrina. What is new in New Orleans is a concerted movement that is forming to rebuild a system that is humane and serves communities instead of undermining them.

The Prison that is a Jail that is a Prison

Orleans Parish Prison, a sprawling campus of facilities in the Mid-City section of New Orleans, near the Superdome, is unusual in a number of ways. Louisiana's parishes are equivalent to other states' counties. So despite its name, Orleans Parish Prison is actually a county jail, not a prison.

County jails typically house pretrial detainees and those serving short sentences for misdemeanors. From April 26, 1999, through January 15, 2001, 90,786 people were booked at OPP on attachments (warrants for failure to appear in court), traffic or municipal charges, or state charges not involving a felony offense. In many of these cases police could have issued citations rather than arresting the person.

Unlike most county jails, OPP also has contracts to house state and federal prisoners, serving as a de facto overflow prison for the DOC and the federal prison system. Thus, the facility mixes some people convicted of violent felonies with others awaiting trial on trivial misdemeanors.

OPP has one of the largest populations of any jail in the country, averaging 6,846 inmates at any one time. New Orleans is the thirty-fifth most populated city in America but has the eighth largest penal institution in terms of the total number of prisoners per day, giving it the honor of having the highest incarceration rate of any large city, with 1,480 prisoners per 100,000 residents. This is double the United States' incarceration rate, already the highest of any country. OPP is also the largest correctional institution in Louisiana, housing about 1,700 more people than the notorious Louisiana State Penitentiary at Angola.

The head of the parish prison is the parish sheriff, an elected official whose official title is "Criminal Sheriff." Pre-Katrina, New Orleans had the twenty-second largest police force in the country, but ranked eighth in total number employed in law enforcement because of the enormous staff of the Criminal Sheriff's office.

OPP wasn't always the current behemoth. When Charles Foti was elected criminal sheriff for Orleans Parish in 1974, a seat he would hold for 30 years, OPP had a population of only about 800, despite the fact that the population of Orleans Parish was more than 100,000 higher then than just prior to Katrina. By the time Foti left after being elected state attorney general, he had expanded OPP's total capacity over tenfold to approximately 8,500.

A History of Abuse and Neglect

The accounts from prisoners, including women and juveniles, of being abandoned in locked cells as floodwaters continued to rise during Hurricane Katrina are just a part of the history of cruel indifference and abuse in OPP.

Just a year and a half ago, two guards were indicted for beating an OPP prisoner to death after he was picked up on charges of public drunkenness. In 2004 OPP was one of the top five prisons with substantiated reports of sexual violence in the nation. It is perhaps for these reasons that the Orleans Parish criminal sheriff had a $17.3 million insurance fund in 2002, $4.9 million of which was designated for the payment of claim liabilities.

OPP has been under one of the longest federal court-ordered consent decrees in U.S. history. For over 35 years, a federal court has been monitoring OPP as a result of a 1969 case, Hamilton v. Morial. The prison is run under guidelines from various federal consent decrees that mandate upgrades in medical treatment, among other areas. Whether the consent decrees have been effective is another matter. Healthcare at OPP was horribly inadequate even before Katrina. A pregnant prisoner reported being left in shackles during labor and another claimed she was denied an examination by a gynecologist despite bleeding immediately after childbirth. In 2001, Shawn Duncan died of dehydration in the OPP psychiatric unit after being held in restraints for 42 hours. He was in jail on traffic charges. Prisoners have died from such treatable conditions as a peptic ulcer, meningitis and bacterial pneumonia. Paul Willis, 52, who died of a ruptured peptic ulcer in 2004, likely writhed in agony for 12 hours before he died. A prisoner died in each of the three months before Hurricane Katrina struck: one died while under medical observation for health problems; another hung himself while under suicide watch.

Both before Katrina and since, a day in OPP was wasted because of scant rehabilitative programs available to prisoners. Only 400 people could participate in the prison's adult literacy program at one time. Prisoners were often released without planning for housing and needed services, further contributing to recidivism problems. Both city and state prisoners were released into a city with only one fully functional re-entry program for ex-offenders. Last year, local programs that helped hundreds of former prisoners get jobs and stay out of trouble were forced to shut down because the state decided to reallocate the federal money that financed them. The re-entry programs that were closed were highly successful, with participant recidivism rates as low as 9%.

Financing a Fiefdom

There is no public safety reason for Orleans Parish Prison to be the largest correctional facility in the state. The jail has grown for other reasons. By agreement, the city of New Orleans pays the Orleans Parish criminal sheriff $22.39 per day for each local prisoner OPP houses--roughly $100,000 per day. (OPP receives even more money to house federal prisoners--about twice as much per prisoner.) For 2006, New Orleans projects it will spend over $50 million to house prisoners. The cost to the city has doubled since 1994, when it was just $22.5 million.

Such payments have led former Orleans Parish criminal sheriffs to discuss the trafficking of prisoners in business terms. Interim Sheriff Bill Hunter commented that "fewer inmates translates into less revenue for the jail." After a drop in state prisoners housed at OPP from 2000 to 2002, then-Sheriff Foti remarked, "If you were in the stock market, you would call this a slow-growth period."

The finances of the Orleans Parish prison empire are a mystery to local and state officials. In fact, the $75 million-plus annual budget presented to the City Council in 2005 was a meager two pages--the same length as the OPP evacuation plan. Personnel expenditures, which totaled $39,910,562, were listed on a single line; the sheriff didn't bother to break the figure down.

This lack of accountability also allows the Orleans criminal sheriff to have unparalleled control over the city's largest patronage base. In 2005, the sheriff had roughly 1,200 nonunion employees who served at his pleasure, exempt from the civil service protections enjoyed by other city employees. The New Orleans Times-Picayune remarked that the victory of current Orleans Parish Criminal Sheriff Marlin Gusman marked his evolution from political appointee to full-fledged politician with his own patronage base.

"OPP has long been a shameful centerpiece of New Orleans' broken criminal justice system with its history of human and civil rights abuses, fatal disease, and institutional violence. It's no coincidence that OPP has also emerged as a centerpiece of political power in New Orleans," says Shana Sassoon from the Orleans Parish Prison Reform Coalition, a group of reformers who have been advocating for positive change in the policies and conditions of OPP.

Prison Labor

The lack of accountability extends to prison labor. Orleans Parish prisoners working alongside roadways, erecting stands for Mardi Gras, setting Christmas lights for the city's Celebration of the Oaks, or working at a Halloween haunted house have long been common sights.

In 1989, the Times-Picayune reported that private citizens and companies could hire prisoners to perform work at minimum wage. From these wages the sheriff would deduct living expenses, travel expenses, support of the prisoners' dependents, and payment of the prisoners' debts, with any remaining money going to the prisoner. Recently OPP built an aquaculture facility--run entirely by prison labor--to raise about 600,000 to 700,000 pounds of tilapia per year. Prison laborers are often used as political tools. When running for office in 2003, Marlin Gusman told the League of Women Voters: "I will work with the city administration to reduce the burden on the general fund and provide more prisoner labor to augment city services."

Hurricane Katrina has not changed the prison's policy on the exploitation of prison laborers who are paid pennies on the dollar; in fact, it may have accelerated it. After the hurricane struck, Gusman promised to make prisoners available to assist in the recovery. Given the fact that the majority of prisoners had yet to be convicted or were convicted of minor offenses, this use of prisoners amounts to modern slavery--or a throwback to the notoriously racist convict-lease and state-use prison labor systems that proliferated in the South after Reconstruction.

Indigent Defense

Once arrested and detained in OPP, New Orleans' poorest citizens are left to an indigent defender system that is one of the worst in the country. Funded almost entirely by traffic ticket revenue, the indigent defender system has been so underfunded that one public defender was forced to file a motion to have a trial court declare him ineffective because of his overwhelming workload and lack of investigative and expert resources. The vast majority--88%--of all those charged in criminal cases in Louisiana qualify as indigent, yet on average prosecutors receive over three times as much funding per case as public defenders.

Those arrested are often the victims of what is called "police sentencing," which occurs when an arrested person spends up to nearly nine weeks in jail before even spurious charges are dismissed. Even then, these people are released only because a state law requires district attorneys to file an indictment or bill of information within 45 days of the arrest of a person for a misdemeanor and within 60 days for a felony. In contrast, the average waiting period in New York City is five days. If adequate indigent defense services allowed public defenders to meet with clients much earlier, many of these people would be released in days rather than losing weeks or months of their lives in jail.

The Costs of a Damaged System

After Hurricane Katrina, the state DOC took custody of the incarcerated men, women and children trapped in OPP. Approximately 8,000 prisoners were then scattered throughout the state of Louisiana to different parish prisons. As the days and then weeks passed, many of these inmates began to complain because the date on which they were supposed to be released had passed. Prisoner advocates acquired a computer print-out from September 9, 2005, listing every single OPP inmate along with their charges and release dates. These records revealed that very few inmates were being released by DOC according to their set dates. Most continued to be held past their term.

Eventually a group of volunteer criminal defense lawyers filed habeas corpus petitions to free the inmates who were being held for no valid legal reason. Soon after judges from Orleans Parish began signing orders to release some inmates who were in prison on low-level charges for nonviolent offences, the DOC sent a memo out to all local jail wardens. This leaked memo addressed the fate of 280 prisoners; it details a plan to "release 35 inmates per day over a period of 8 days (excluding weekends)." It still is unclear why these 280 prisoners eligible for release--likely to be a small subset of those eligible for release, given that so many in OPP were pre-trial detainees--were being trickled out of prison so slowly.

Although the DOC might have been simply overwhelmed, there are other possible reasons why it released people at such a sluggish pace. The DOC currently receives financial assistance from the Federal Emergency Management Authority (FEMA) for each prisoner it holds. A spreadsheet obtained by criminal defense attorneys lists the reimbursements the DOC is requesting from FEMA. The projected reimbursement for just one day, December 19, 2005, was $146,495.42. At that daily rate, DOC was expecting to be reimbursed roughly $13 million dollars for holding 4,215 prisoners from September 1 until December 1, 2005. The most recent memo obtained estimates that FEMA will reimburse the DOC $120,735.94 for holding 3,716 prisoners on January 13, 2006. In other words, there is a serious financial disincentive for the DOC to move quickly on releasing prisoners.

In contrast, the New Orleans public school system learned in January that FEMA had denied its application for an $87 million loan to keep its schools solvent. "FEMA gives away $120,000 a day to already powerful and corrupt prisons but won't even loan a penny to poor struggling schools. Children always seem to be the ones being asked to pay the price while adults squander our children's futures," says Xochitl Bervera, prison activist and codirector of Families and Friends of Louisiana's Incarcerated Children.

During a recent special session on Hurricanes Katrina and Rita, the state legislature passed a bill barring lawsuits by people kept in prison past their release dates. Prisoners in the custody of the sheriff or law enforcement agency who were evacuated during and immediately after the hurricanes and were not released within the time required by the Code of Criminal Procedure cannot sue the sheriff or law enforcement agency for damages. The primary beneficiary of this legislation is the DOC.

In New Orleans, OPP reopened in mid-October, housing a small population. In a November 10 letter to the New Orleans City Council, Sheriff Marlin Gusman reported: "Our current inmate population is approximately 600."

At the time, only two of OPP's twelve major units were operational. Gusman acknowledged that "even those two that are operational will still require additional repairs and improvements to be brought to pre-Katrina level." The sheriff's letter did not say whether the facility had been tested for toxins which are likely to have come into OPP with the flood waters.

Gusman is clear, however, about the urgency to reopen OPP. "Our main source of revenue is per diem payments for the care, custody and control of inmates," he wrote. "Our current inmate population is É a 90 percent reduction in revenue, but our fixed costs remain high."

At Stake: The Future of a City and Its People

Clearly, even before Katrina criminal justice policy in New Orleans was at a crisis point. But this is not just a public safety crisis. It is simultaneously a crisis of civil rights, education, and poverty. One in seven African-American men in Louisiana end up in the prison system, while only 1 in 35 end up in college. Arrest and detention policy is seemingly arbitrary and often nonsensical as NOPD arrests and detains citizens for offenses as minor as riding a bicycle with one hand. Meanwhile, violent crime skyrockets and cases are rarely solved. Police exercise minimal restraint, leaving communities fearing police even more than they fear street crime. The court system remains in disarray as public defenders are overwhelmed with massive caseloads resulting in inadequate indigent defense and prolonged incarceration for low-level non-violent offenders. Families and children lose breadwinning parents to frivolous arrests and incarceration, sending communities into a cycle of poverty. But the real costs of a broken criminal justice system cannot be measured in mere dollars. They include the damage that violence, substance abuse, and poverty do to schools, neighborhoods, and families.

The good news is that as the floodwaters receded, the city's system's failures were exposed both locally and nationally. Members of Families and Friends of Louisiana's Incarcerated Children, working on direct disaster relief, began hearing tales of terrible abuse and mistreatment at OPP and Camp Greyhound, the city's temporary makeshift jail at the Greyhound station. Stories of police brutality and abuse in the aftermath of Katrina followed. As a result, Safe Streets/Strong Communities was born, a new organization whose mission would be to transform the local criminal justice system into something safer, more humane, and less costly than it has been and to hold those in power accountable for corruption, abuse, brutality, and misconduct.

Safe Streets/Strong Communities emerged out of a common understanding among scores of progressive individuals and organizations that as New Orleans' criminal justice system is rebuilt, existing criminal justice institutions will use the fear of crime to increase and consolidate their institutional power. This drive by police, prosecutors, and the OPP to expand their power can only be counteracted by a strong, unified, community-driven campaign to rebuild a democratic and transparent criminal justice system that is focused on public safety rather than political power.

Barry Gerharz is an attorney and the legal coordinator for Safe Streets/Strong Communities. Recipient of a 2004 Reprieve Fellowship to work as an advocate for the wrongfully convicted in Louisiana, he successfully pushed for a state compensation statute. Before this statute was passed, Louisiana's wrongfully convicted were given just ten dollars upon their release.

Seung Hong is a freelance journalist and Communications Director for the Juvenile Justice Project of Louisiana, currently on loan as Communications and Policy Coordinator to Safe Streets/Strong Communities. He is a native of Bremerton, Wash., but was raised in New Orleans.