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Prisons, politics, and pointing fingers: the issues plaguing Orleans Parish Prison's consent decrees.

  I. Introduction
 II. The Broader Issues Preventing Reform
     a. Separation of Powers
     b. Federalism
III. The Basis for Reform
     a. Eighth Amendment Standards
     b. Examples of Eighth Amendment Violations in OPP
     c. Effects of Eighth Amendment Violations
 IV. A Comparison of OPP's Attempts at Reform
     a. The 1970 Consent Decree
     b. The 2013 Consent Decree
  V. Remaining Issues and Recommendations
     a. The Budget Issue
     b. Recommendations for the Budget Issue
     c. The Size Issue
     d. Recommendations for the Size Issue
 VI. Conclusion


The United States has the largest prison population in the world. (1) Within the United States, Louisiana has the highest incarceration rate. (2) Excessive incarceration rates inevitably lead to inhumane and unconstitutional conditions in the prison system. These conditions violate the Eighth Amendment's ban on cruel and unusual punishment. Thus, reforms are necessary to cure the violations. For example, in New Orleans, Louisiana, steps have been taken to correct noncompliance with the Constitution; however, these steps have failed to result in any meaningful reform. As such, the cycle and effects of unconstitutional conditions in the prison system continue. This cycle negatively and deeply affects not only the prisoners themselves, but the community at large. That being said, the path towards a constitutionally sound prison system lies in the political process. Accordingly, the community must take steps to decrease the rate at which persons are incarcerated, abolish the patterns of dysfunction within the prison, and put the politics aside to lead to a workable solution.

Orleans Parish Prison ("OPP") has been called "the worst large city jail in the United States." (3) Thus, OPP is the paradigmatic example of the national systemic violations of constitutional rights under the Eighth Amendment that prisoners face here in the United States. As such, OPP provides the perfect lens for looking into the systemic issues of unconstitutional incarceration on a local level. Initially constructed in 1929, OPP was originally designed to house only 400-500 inmates. (4) Today, OPP is a giant complex in Mid City, New Orleans, made up of several buildings spread across a dozen blocks. It currently houses over 2,000 inmates. (5)

OPP is unique in many ways. First, Louisiana's parishes are equivalent to other states' counties. Therefore, despite its name, OPP is actually a county jail, not a prison. The facility combines persons convicted of violent felonies with those awaiting trial on misdemeanors, such as drug or traffic offenses. Since the 2004 election (6) cycle, Sherriff Marlin Gusman has controlled OPP, now "small empire." (7) Sheriff Gusman inherited this empire from former Sheriff Charles Foti, who controlled OPP for thirty years.

OPP has long been criticized for its inhumane conditions. In October of 1969, prison inmates filed a class action lawsuit citing overcrowding and deplorable conditions in OPP. (8) The conditions cited included physical deterioration, severe overcrowding, a lack of qualified supervisory personnel, corroded and unsanitary plumbing, infestation of rodents, roaches, and other vermin, and lack of medical and mental health care. (9) The conditions violated state and local fire and health codes. (10) The bathing facilities were poorly inadequate, and inmates were only allowed outdoor exercise once every twenty or thirty days. (11) The "[o]vercrowding, the lack of a classification system, inadequate supervision and easy inmate access to materials for fashioning weapons created a situation in which physical and sexual assaults were frequent and the threat of attack was constant." (12)

In order to remedy such Eighth Amendment violations, federal courts sometimes intervene and implement a consent decree or consent judgment (13), and OPP is no stranger to this procedure. The 1969 class action culminated in one of the longest federal court-ordered consent decrees in United States' history. (14) In June 1970, Judge Herbert Christenberry of the United States District Court for the Eastern District of Louisiana found that "the conditions of ... confinement in Orleans Parish Prison so shock the conscience as a matter of elemental decency and are so much more cruel than is necessary to achieve a legitimate penal aim that such confinement constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution." (15)

OPP has operated under the 1970 order until the most recent consent decree was issued in June 2013. Interestingly, the inhumane conditions cited in the 2013 consent decree are nearly identical to those cited in 1970. However, nearly two years after the latest decree, issues persist with OPP's compliance with the decree's constitutional reforms. The unconstitutional conditions are indicative of broader political, social, and societal issues within the community.

This comment will address OPP's Eighth Amendment longstanding and persistent violations through the lens of Louisiana's political culture and demonstrate why these violations have not been remedied after decades of attempts. I will argue that this is because OPP's problems are not fixable by a court order. Part II discusses the context and broader issues preventing reform, namely: separation of powers and federalism. Part III provides explanations, examples, and effects of the Eighth Amendment violations at OPP. Part IV is a comparison of OPP's 1970 and 2013 consent decrees and how they parallel one another. Finally, Part V identifies the issues still plaguing OPP even after implementation of the consent decree and offers recommendations on how to correct them.


a. Separation of Powers

Issues such as "separation of powers arguments are common in prison conditions litigation." (16) Separation of powers is a "term of art" that describes the Constitution's tripartite division of authority among the separate and co-equal branches of government. (17) This division of authority meant that, "historically, the judiciary played no role in supervising prison conditions". (18) This was due in large part to the idea that the administration of prisons fell under the purview of the executive, not the judicial branch. (19) However, "[p]rison litigation chronicles an important transformation between the judiciary and other branches of government." (20)

A trend toward judicial activism in prison litigation is largely attributable to legislative and executive inaction. (21) Legislatures have traditionally shown little interest in allocating funds for basic improvement of prison conditions. (22) Moreover, '"government officials many times succumb to political pressures to shirk their constitutional responsibilities.'" (23) Although action by these politically accountable authorities would be preferable, there is no constitutional provision that requires them to do so. As such, courts are relied on to step in where the other branches have failed to act to enforce the constitutional rights of prisoners. (24)

However, when the courts do step in, they differ as to the extent of the remedies they can impose. "In fashioning any remedy in a prison setting, courts must show great deference to state officials and to the legislature." (25) As such, some courts have taken the approach that their authority and discretion in the area of prison reform are limited because state legislatures have the primary responsibility for prison management. (26) These courts emphasize that the judiciary "lacks the expertise and guidance that can be tapped by the legislative and executive branches." (27) Moreover, these "[c]ourts are also aware of the tremendous pressure that can be placed on financially strapped legislatures by judicially imposed remedies." (28)

On the other hand, some courts readily invoke broad remedies to cure constitutional violations. These courts argue the duty to enforce civil rights and the need to protect minority interests justify the judiciary's role in prison reform. (29) Accordingly, such courts take the approach that "when government officials refuse to confront their responsibilities, judicial intervention becomes indispensable." (30) Courts of this view will sometimes issue a consent decree ordering the government to implement reforms that comply with the Constitution. Nevertheless, prisons in America create problems that are "complex and intractable ... they are not readily susceptible of resolution by decree." (31) "Most require expertise, comprehensive planning, and the commitment of resources, all of which are ... within the province of the legislative and executive branches." (32) Therefore, judicial intervention is often not enough.

In reforming OPP, finger pointing among elected officials is regarded as the biggest factor hindering the implementation of reforms. This is due in large part to Louisiana's decision to hold an election for almost every office in every branch of government. In New Orleans, the Sheriff, Mayor, and City Council members are all elected. Thus, like most elected officials, they are compelled to answer to their constituents and campaign donors. In a city where nearly every official or administrator in every branch of government is elected by popular vote, politicians have little deterrence from doing what serves their own, personal, best interests.

The only non-elected official involved in the recent OPP consent decree is the Federal Judge, Lance Africk. Judge Africk is left to be the referee among the different branches of local government on almost every aspect of the New Orleans prison system. As such, the lines of demarcation drawn to distinguish the branches and their respective roles have been blurred. The City Council passes resolutions and mandates, yet the Sheriff does not follow. Presently, with a situation where a Sheriff refuses to comply with the parish's legislative body, the court is placed in the middle of the feuding parties. This then leads to federalism concerns and whether it is proper for the federal courts to not only interpret the law, but also enforce it under the consent decree.

b. Federalism

At the risk of oversimplifying the concept, federalism can be described as the evolving relationship between the state and the federal government. As such, "[p]rinciples of federalism require respect for state functions and demand that the federal government protect federal rights 'in ways that will not unduly interfere with the legitimate activities of the States.'" (33) Therefore, fundamental questions of federal-state relations arise whenever federal courts issue decrees that regulate state institutions such as prisons. For the most part, the concern with consent decrees, such as the recent OPP decree, is with federal courts ordering the expenditure of state funds. (34) However, when state governments are truly insensitive to the requirements of the Eighth Amendment, the case for federal judicial intervention is strong. (35)

The cost of providing constitutional prison conditions is a state and municipal obligation. (36) Thus, the cost should be borne by state and municipal bodies, which are accountable to their constituents. (37) For example, in Rhodes v. Chapman, Justice Brennan stated that federal courts must recognize the primacy of the state to administer their prisons. (38) However, he felt no need to defer to the states when they did not conform to "constitutional minima." (39)

Holt v. Sarver was the first time a federal court ordered the remediation of conditions in a state prison. (40) The judge found that the conditions of the Arkansas State Penitentiary were degrading, disgusting, and inhumane. (41) However, the judge allowed the Arkansas state authorities to fashion the appropriate remedies because the judge was still hesitant on the legality of the intervention. (42) After three years, the prison still did not have a constitutional environment. (43) Only then did the court begin to significantly intervene in the remediation process. (44) From Holt, federal judges learned that rigorous federal judicial intervention was indispensable if the prisoners were to be protected. (45) A critical stage in judicial activism had been reached proving that judicial intervention was required for results.

OPP has remained stagnant at a critical juncture, even with federal intervention. The June 2013 Consent Decree required the appointment of a Monitor. (46) The Monitor's job is to report on the progress of implementing the federally mandated reforms. (47) However, the Monitor's most recent report reflects the lack of dedication by the Sheriff to correct these conditions. (48)

The report stated, "While appreciating that there is substantial work to gain compliance, the health and safety of more than 2,000 inmates are in peril today because of the lack of staff, wholly substandard medical care, absence of mental health care and deteriorated and unclean living environments.... " (49) According to Monitor Susan McCampbell, medical and mental health care have actually deteriorated at OPP since the monitors toured the jail in December. (50) Moreover, progress has been made but only in 22 out of 174 areas specified in the decree. (51) Thus, the jail is deficient in 85% of the areas covered by the decree. On August 28, 2014, Judge Africk held a hearing on the Monitor's most recent report. (52) At the hearing, the Monitor noted that the Sheriffs Office has been late in filing progress reports on the jail. (53) The next status conference will be held on October 17, 2014. (54)

Federal judicial intervention was necessary for OPP. The inhumane conditions found during the implementation of the 1970 decree persisted into 2013 with no sign of reform. Nevertheless, the Monitor's report proves that OPP has the "complex and intractable" (55) problems that "are not readily susceptible of resolution by decree." (56) This is because the unconstitutional conditions that persist in OPP have created a dysfunctional cycle that has a destructive effect on those inside and outside the prison walls. Therefore, the dedicated and cohesive involvement of all branches of the Parish's government is indispensable to reform in OPP.


a. Eighth Amendment Standards

The Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

"The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones." (57) This is an oft-cited principle regarding the Constitution's ban on inflicting "cruel and unusual punishment" on incarcerated individuals. (58) The Eighth Amendment sets a minimal standard for conditions of confinement for pretrial detainees as well as convicted prisoners. (59) At a minimum, "inmates [must] receive adequate food, clothing, shelter, medical care, [mental healthcare,] and must 'take reasonable measures to ensure safety of the inmates.'" (60) However, as noted in Part II, how far the courts have been willing to go to protect Eighth Amendment rights has changed throughout the decades.

Prior to the mid-1900s, the judicial branch employed a tradition of non-interference in prison matters. The prevailing thought was that judicial interference would be disruptive and implicate separation of powers concerns. (61) It was not until 1976 that the Supreme Court in Estelle v. Gamble began to hear cases on prison conditions. (62) However, the Estelle holding left much to be desired in terms of filing suit under the Eighth Amendment. (63) Over the next decade, courts grappled with what was required to successfully challenge prison conditions. (64) More specifically, a debate ensued regarding whether the purpose of the Eighth Amendment was to prevent prisoners from enduring harmful conditions or to prevent inappropriate actions by staff members, or both.

The 1980s saw a more hands on approach. In 1981, the Supreme Court addressed the proper application of the Eighth Amendment and provided the prevailing framework for Eight Amendment challenges. (65) In Rhodes v. Chapman, the Court

explained that the Eighth Amendment can never be static. (66) As such, the Court held that the meaning of "cruel and unusual" must be found in '"evolving standards of decency that mark the progress of a maturing

society.'" (67) In a prison setting, cruel and unusual punishment will be found when there are "serious deprivation[s] of basic human needs." (68)

Today, Eighth Amendment challenges require the fulfillment of both subjective and objective components in order to be actionable. (69) A prisoner must make an objective showing that a condition poses "a substantial risk of serious harm." (70) Additionally, the subjective component requires that prison officials act with a culpable mental state. (71) Moreover, a totality of conditions of confinement may violate the Eighth Amendment when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise. (72) To challenge a prison condition under the Eighth Amendment, a prisoner must demonstrate that the challenged condition he faces is "sufficiently serious" and that prison officials acted with "deliberate indifference" to that condition. (73) This is often a high bar for plaintiffs seeking relief from unconstitutional conditions. (74) As such, it has become increasingly difficult for prisoners to simply have their complaint heard.

b. Examples of Eighth Amendment Violations at OPP

In 2013, Manuel Romero, an expert in jail administration who has evaluated and assessed over a hundred prisons in the United States, concluded that OPP is "totally dysfunctional in terms of overall security." (75) Romero found OPP to be unsafe for both staff and inmates. (76) Jeffrey Schwartz, another prison expert, concluded that OPP is the worst jail he has seen in his thirty-five year experience. (77) He stated, "[OPP] is likely the worst large city jail in the United States." (78) The unconstitutional conditions that exist in OPP are particularly obvious in terms of the environment, safety, staffing, and medical and mental health care.

The jail has an unprecedented amount of rapes and sexual assaults with no intervention or accountability by OPP staff. (79) Specifically, one inmate reported being tied up and gang-raped by ten to fourteen other inmates, and then forced to dance in a thong in front of a knife-wielding crowd. (80) When a guard passed the scene, the inmate did not call out for help because he feared being killed. (81) In another case, a guard reported hearing sounds of prisoners fighting and someone urging physical and sexual abuse of another inmate, but he too did not intervene. (82)

However, there are virtually no investigations into such conduct and no procedures in place for staff to respond to inmate reports of sexual assault. (83) Often, OPP staff members make derisive comments when an inmate does report a sexual assault. (84) Such comments lead to the classification of reporting inmates as victims and thus perpetuates a strong display of tolerance for sexual assault in OPP. (85) Thus, the lack of intervention and accountability allows these incidents to remain a regular occurrence in the jail.

OPPs facilities are deplorable. Many toilets, sinks, and showers are not functional. (86) Sewage leeks into cells, including those where inmates eat. (87) The acute psychiatric unit's showers have large amounts of black mold on the ceilings and walls. (88) Inmates with mental health issues are housed in units that "smell strongly of feces, urine, and rotting organic matter." (89) Inmates are, at sometimes, forced to sleep on the floor or bare steel bunks because they are not provided with mattresses. (90) Ventilation throughout the facility is poor because inmates plug the vents without repercussions. (91) Rusted and poorly secured fixtures are used to create and conceal weapons. (92) Old locks allow inmates to lock and unlock their cells at will. (93) This creates an environment that is not only a health hazard, but which also has profound effects on an inmate's psyche.

Mental healthcare is virtually nonexistent for OPP's inmates. Inmates could wait weeks or months for psychiatric attention. (94) Moreover, inmates who harm themselves or who are suicidal are typically not seen until the next working day. (95) Thus, OPPs lack of mental health care leads to suicide and violence. For example, on April 3, 2004, Matthew Bonnette was arrested for traffic-related charges and committed suicide the following day. (96) Bonnette was put in a cell on "suicide precautions." (97) Although his belt and shoelaces were taken from him, the restraint belt was left in the cell. (98) Moreover, his cell was not suicide proof as it had numerous anchor or tie-off points. (99) The guards that were supposed to monitor him every fifteen minutes failed to do so. (100) Bonnette hung himself using the restraint belt and another prisoner notified deputies of Bonnette's death. (101)

Bonnette is not alone. Inmate Michael Hitzman killed himself within a few hours of being booked. (102) Allegedly during booking, Hitzman told jail personnel he was suicidal and high on crack cocaine. (103) Shortly after, Hitzman hanged himself with his t-shirt in an isolation cell. (104) His death was recorded on surveillance video; however, no guards checked on his cell until he had been dead for over an hour. (105) Guards are required to make rounds on that isolation cell every thirty minutes. (106)

Tracy Barquet was booked into OPP on drug charges on July 29, 2010. (107) Barquet became delusional and was given medication but was not monitored or observed. (108) On August 7, he was discovered by another prisoner lying dead on the floor of his cell. (109) His cause of death is "undetermined." (110) Additionally, William Goetzee was a Commander in the U.S. Coast Guard who was arrested for attempting to grab a federal protective service officer's gun with which he sought to kill himself. (111) Booked into OPP, he was denied medical treatment and procedure dictated that he was to be continuously watched by deputies. (112) A jail deputy abandoned his post for two to three hours during which time Goetzee killed himself by swallowing toilet paper and water. (113)

OPP inmates are deprived of proper medical care. (114) Because of this, several prisoners have died while incarcerated in OPP. Keiwine Warren was 22 years old when he died in OPP. (115) He died an excruciating death from an untreated perforated ulcer. (116) He begged for treatment; however, he was not seen by a physician until he lay on the floor of his cell, unresponsive, with no pulse. (117) He suffered permanent brain damage and died the next day. (118)

Cayne Miceli suffered the effects of the lack of proper healthcare in OPP. (119) Miceli, a 43 year old woman, was arrested on charges related to a disturbance at the Tulane Medical Center's ER regarding her attempt to obtain care for an acute asthma attack. (120) She was booked into the general population at OPP, denied care, and reportedly attempted suicide. (121) Miceli was subsequently tied down by five point restraints while lying flat on her back for four hours and fifteen minutes. (122) When it became difficult for her to breath, Miceli attempted to loosen the restraints. (123) Deputies then held her down as she lost consciousness and was brain dead upon arrival at the hospital. (124) "The cause of death was bronchial asthma." (125)

The sordid environment, lack of staff and safety, and poor medical and mental health care are only a few examples of Eighth Amendment violations in OPP that have persisted throughout the years. For the most part, these violations can be attributed to the overcrowding of the prison and a budget that is inadequate and mismanaged, which will be addressed further in Part V. Nevertheless, these "specific examples of dysfunction at OPP are representative of systemic deficiencies" (126) and lead to pervasive and long-standing problems that ultimately affect the community.

c. Effects of Eighth Amendment Violations

Prisons and jails like OPP are not serving the purposes for which they were created: rehabilitation and punishment. Incarceration should serve the goal of punishment for the crime committed, incapacitation from committing additional acts for a period of time, deterrence from committing future acts, and rehabilitation to regain and retain the rights lost while incarcerated. (127) The conditions prisoners encounter while incarcerated determine whether these goals will be met. When subjected to substandard and unconstitutional conditions, inmates often leave prison mentally, physically, and emotionally unstable. (128) Lack of rehabilitative programs contributes to recidivism as well as "physical and mental deterioration." (129) Thus, the conditions of the prison affect the purposes of the penal system and have lasting affects long after a prisoner's release date.

Prisoners often leave incarceration a more profound criminal than when they entered. In Brown v. Plata, Justice Kennedy noted that reducing overcrowding in prison could enhance public safety. (130) According to Justice Kennedy, overcrowding leads to "criminogenic" aspects. (131) This is because prisons are plagued with recidivism. Most criminals recidivate, in the sense of committing more than one crime, or even committing crimes after some degree of punishment, control or supervision. (132) A recent study suggests that at least forty percent of all offenders released from prison in the United States were reincarcerated for new crimes or violations within three years. (133)

Additionally, prisoners who are not provided with adequate medical and mental health care will leave prison with life-long mental and physical illnesses. Due to these illnesses and the absence of care, the released prisoner is unable to find a job or secure work in the future. Moreover, the lack of rehabilitation and skill development deprives the prisoner of being job ready upon release. Thus, many prisoners will return to whatever earned them money prior to incarceration. For many, this is what led to incarceration in the first place. Therefore, the cycle continues and the prisoner ends up back in jail.

The unconstitutional conditions at OPP ensure that the goals of incarceration are not met. The lack of staffing, surveillance, and an organized reporting system allow criminals to continue to engage in criminal behavior while incarcerated. The substandard facilities create an environment wherein illnesses are constant and prisoners have no opportunity for rehabilitation. These conditions are essentially the same as those from which OPP prisoner's sought relief in 1969.


Prisoners that are subject to unconstitutional conditions have limited options available to seek relief. The most prevalent option is filing suit and possibly obtaining a consent decree. (134) A consent decree is a final, binding, judicial judgment memorializing a voluntary agreement between parties to a suit in return for withdrawal of a criminal charge or an end to a civil litigation. (135) "Generally, before entering a consent judgment, ... courts must decide whether it 'represents a reasonable factual and legal determination based on the facts of record, whether established by evidence, affidavit, or stipulation.'" (136) Moreover, "the court must consider the nature of the litigation and the purposes to be served by the decree." (137)

As previously mentioned, one of OPPs most significant decrees was issued in 1970 by Judge Herbert Christenberry of the United States District Court for the Eastern District of Louisiana. (138) Judge Christenberry ordered the Mayor and city council to correct the unconstitutional conditions, thus commencing one of the longest federal court-ordered consent decrees in U.S. history. (139) OPP has operated under this order until June 2013 when Judge Lance Africk found that a new decree was "the only way to overcome the years of stagnation that permitted OPP to remain an indelible stain on the community, and it will ensure that OPP inmates are treated in a manner that does not offend contemporary notions of human decency." (140) However, the Monitor's Report referenced in Part II shows that the problems plaguing OPP in 1970 continue to be an issue in 2014. Thus, a comparison of the consent decrees is illustrative.

a. The 1970 Consent Decree

Judge Christenberry's 1970 order did not provide a detailed remedial plan. (141) The court instead ordered the defendants to file a progress report within thirty days. (142) Once the report was filed, the plaintiffs filed a response claiming that conditions "remained essentially the same as they had been when the court order was filed." (143) In the next year, the court acted on only one of the plaintiff s motions--the appointment of a special master to provide a comprehensive plan for relief. (144)

In 1972, the special master filed three separate reports, the last of which was adopted by the court as its final remedial decree. (145) "The remedial order covered all phases of prison operations including medical services, limitations on inmate population size, security, inmate discipline, admission and orientation procedures, administrative and personnel matters, and environmental health conditions." (146) The court also called for two extraordinary measures: the creation of a city department of detention and corrections and for the closure of the main prison for all purposes except as an admittance and orientation unit. (147) However, such measures were never implemented, frustrating any real attempt at improving the conditions in OPP. (148) Because of this lack of inaction, the momentum behind the lawsuit essentially fizzled out by 1980. (149)

In 1988, the National Prison Project stepped in to attempt to reinforce the order. (150) Throughout 1989, the plaintiffs and the Sheriff waged a battle over access to the prison and information in the Sheriffs possession. Discovery requests were ignored and left unanswered. (151) Nevertheless, the plaintiffs developed a new strategy to circumvent the sheriffs refusal to cooperate in discovery. The plaintiffs began gathering information "from the State and the Parish coroner how many prisoners died in recent years or were sent to Charity Hospital.... " (152) This produced the names of fifty deceased OPP prisoners and hundreds of prisoners requiring emergency room treatment. (153) The records reflected a shocking pattern of serious failure to provide proper medical care within OPP.

When the gross inadequacies of medical care at OPP came to light, the Sheriff agreed to a joint discovery order that put liability aside and focused on developing a remedy. (154) Soon thereafter, a comprehensive medical plan was developed. (155) However, the plan was halted as the sheriff and city fought over who would provide funding for the plan. (156) As such, the dispute turned into an issue of funding, rather than whether the current medical care at OPP violated the Constitution.

Nevertheless, one day into trial the defendants of the renewed suit agreed to sign a comprehensive agreement establishing a medical care program to be funded by two million dollars in annual aid from the State and City. (157) The program was to be headed by a full-time medical director. (158) Additionally, the agreement provided for a court appointed monitor to oversee implementation of the program. (159) However, the monitor found that many of the changes were merely cosmetic and the Sheriff did not take the Order seriously. (160) In 1989, Mark Lopez, an attorney with the National Prison Project, wrote that "[p]ost]-judgment enforcement proceedings [were] inevitable." (161)

b. The 2013 Consent Decree

Consent decrees have become a powerful tool of enforcement of statutory and constitutional rights. (162) However, today, when a consent judgment involves prospective relief with respect to prison conditions, an additional level of review applies, the Prison Litigation Reform Act. (163) The PLRA provides:

   Prospective relief in any civil action with respect to
   prison conditions shall extend no further than
   necessary to correct the violation of the Federal
   right of a particular plaintiff or plaintiffs. The court
   shall not grant or approve any prospective relief
   unless the court find that such relief is narrowly
   drawn, extends no further than necessary to correct
   the violation of the Federal right, and is the least
   intrusive means necessary to correct the violation
   of the federal right. The court shall give substantial
   weight to any adverse impact on public safety or
   the operation of a criminal justice system cause by
   the relief. (164)

The PLRA was signed into law on April 24, 1996 and was passed in response to what Congress believed to be an onslaught of inmate litigation and judicial micromanagement of prisons. (165)

The PLRA serves to "curtail federal courts' long-term involvement in prison reform and halt federal courts from providing more than the constitutional minimum necessary to remedy federal rights violations." (166) Since its enactment, the PLRA has generated a great deal of judicial decisions, including four by the United States Supreme Court. (167) Moreover, one of the major purposes of the PLRA is to place limits on the ability of courts to grant injunctive relief in cases brought by prisoners to improve prison conditions. (168) As a result, the Act has been subject to sharp criticism from human rights groups and the media. (169)

Compliance with the PLRA generally presents a higher bar to approval of a consent judgment than that imposed by case law. (170) As such, the parties to a consent judgment must stipulate that it complies with the PLRA, and the court must conduct an independent inquiry. (171) Moreover, the PLRA includes a narrow tailoring requirement that was addressed in Brown v. Plata, (172) In Brown, the Supreme Court explained that "[n]arrow tailoring requires a "fit' between the [remedy's] ends and the means chosen to accomplish those ends.' The scope of the remedy must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the violation." (173) Additionally, the court must give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. (174) Thus, the court must minimize those consequences while still achieving an effective remedy for the constitutional violation. (175) The PLRA and requirements for issuing consent judgments make it difficult for inmates to have their case heard and to have constitutional rights enforced. OPP's journey to the 2013 consent decree is reflective of this hardship.

Mark Lopez's predictions in 1989 were correct because the Department of Justice ("DOJ") found OPP to be violative of the Eighth Amendment in 2009, citing nearly identical conditions as those in 1969 by Judge Christenberry. In 2009, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), (176) the DOJ issued a findings letter (177) to Sheriff Gusman regarding the conditions of OPP. CRIPA gives the Attorney General authority to seek a remedy for a pattern or practice that violates the constitutional rights of inmates in adult detention and correctional facilities. (178) The Attorney General found that OPP was a failing institution that violated the constitutional rights of inmates. (179)

In 2011, the DOJ issued a consent decree proposal. (180) The following year, three youth inmates, represented by the Southern Poverty Law Center ("SPLC"), filed a complaint in federal court (Jones v. Gusman) for injunctive and declaratory relief "alleging that unconstitutional conditions at OPP facilities subjected them to substantial risks of bodily harm or death." (181) Not long after, the DOJ issued a findings update that unlawful conditions persisted; notified the Sheriff of discriminatory conditions; and requested that the Sheriff take immediate action. (182) Nevertheless, the conditions at OPP remained static. Thus, in September 2012, the DOJ intervened in Jones v. Gusman. (183)

Jones v. Gusman is the suit that culminated in the June 2013 consent decree. The class action lawsuit was headed by Katie Schwartzmann, then with the Southern Poverty Law Center and now with McArthur Douglas Justice Center. Schwartzmann and her lead investigator, Maggie Yates, participated in a panel at the Loyola Journal of Public Interest Law's Symposium in February of 2014. At the Symposium, Misses Schwartzmann and Yates explained the hardships they faced when bringing this suit.

Although the legal issues were fairly simple because of OPP's egregious constitutional violations, the difficult part was surviving PLRA scrutiny and constructing a viable class for the lawsuit. (184) Moreover, it was not easy compiling facts and information that were not only relevant, but also credible. The litigation team interviewed 900 different prisoners and conducted follow up interviews with many. (185) They collected declarations and created charts and databases. All of the information gathered reflected patterns within OPP that "required no embellishment." (186)

After filing suit, the team was met with significant discovery issues, as the prison does not have sophisticated systems in place to collect data. (187) Much like the attorneys in 1989, this team began compiling data from third parties such as emergency rooms, ambulances, and fire marshals. (188) The team was then able to do their own analysis and produce credible facts to put forth in court. (189)

On June 6, 2013, the City and Sheriff signed a new consent decree. (190) The substantive provisions of the consent judgment are organized by subject matter. The subjects are as follows: "protection from harm, mental health care, medical care, sanitation and environmental conditions, fire safety, language assistance, and youthful prisoners." (191) Within each subject, there are several components, which address certain policies and practices. (192) The substantive provisions are a mix of broad guidelines and specific benchmarks. (193)


d. The Budget Issue

The biggest debate lingering after entering the consent decree is where the money will come from to implement the mandated changes. No party seems to want to take responsibility for costs despite the fact that the decree cannot remedy the unconstitutional conditions without adequate funding. Allocating funds for prisons is difficult for many reasons. In recent years, the Department of Corrections has faced major budget cuts. Moreover, the community is hesitant to make funding the prison system a priority, while many are still feeling the effects of the 2008 recession. The lack of budget, coupled with Louisiana's statutory scheme creates a dynamic between the Sheriff and the City that has prevented implementation of consent decrees and lasting reform.

This dynamic has long been recognized as the biggest factor in perpetuating the unconstitutional conditions in OPP. (194) In 1972, Hans Mattick, a corrections expert, issued a report analyzing the local government structure and its effects upon the conditions at OPP. (195) The "Mattick Report" found that "the basic problem of Orleans Parish Prison is one of politics and money; the fragmentation of power over the prison and the division of control between the Criminal Sheriff and the City of New Orleans." (196) Mattick noted that Louisiana's laws require that the Parish elects the Sheriff, and the law gives him administrative control of the prison. (197) Further, the municipal administration is elected by the City of New Orleans and the law requires it to fund the prison. (198) The result is that "the Criminal Sheriff blames the City for not giving him enough money to operate and maintain a decent prison; the City refuses to invest public funds in a prison administered so poorly by the Criminal Sheriff; and both are right." (199) The same is true today.

No one can agree on how much it will cost to bring OPP up to par. A DOJ expert estimated the cost could range from $5.9 million to $9.7 million a year, depending on whether OPP's deputies' salaries are raised. (200) Similarly, an expert hired by the City of New Orleans said the cost would be around $7 million a year. (201) On the other hand, the Sheriffs Office claims the cost could rise to as much as $23 million. (202) In October 2013, the City agreed to pay the Sheriff $1.88 million through the end of 2013 for changes to be implemented. (203) Additionally, the City continued to pay the Sheriff $22. (39) per inmate per day, the per diem that is required under 1970 consent decree. (204)

During the budget debate, the City argued that Gusman should be forced to pay for the reforms because he has mismanaged the money the City has given him in the past. Nevertheless, the City, under state law, is required to pay for city prisoners' care. (205) Nearly ten months after signing the consent decree, the Mayor and the Sheriff inked a temporary deal on the 2014 budget. (206) The Mayor agreed to budget $2.05 million for 2014. (207) While the deal temporarily ended the budget debate, the agreement was silent as to the 2015 budget. (208) Moreover, the 2014 budget is far from the amount requested by the Sheriff. (209) Thus, the Sheriff will be unable to fully implement the consent decree without adequate funding.

Louisiana statutes relevant to the jail do not provide any guidance in the budget debate. Under Louisiana law, the sheriff runs the jail, and the city provides the funding. (210) The statutes merely mandate that the sheriff is "the keeper of the public jail" (211) while "[t]he governing authority of each parish" (212) is responsible for the jail's maintenance. As such, Sheriff Gusman continues to request additional funding from the city in order to comply with the consent decree. The Sheriffs Office requested $41.4 million from the City for his operations budget in 2014. (213) The City argues that the consent decree treats the City as "an unlimited bank account for the benefit of the inmates and the Sheriff." (214) Additionally, the City claims that the budget already is--and has been--sufficient to run the jail. (215)

Unquestionably, fashioning remedies for constitutional violations is costly. (216) Cost issues and budgetary constraints are an often-debated aspect of Eighth Amendment jurisprudence. (217) Excessive crime rates, recidivism, and longer prison terms require increasing amounts of public funds to run prisons. (218) Moreover, financial issues in prison litigation raise problems with long standing constitutional principles such as federalism. (219) Regardless, compliance with constitutional mandates is not optional.

The Supreme Court has not definitively decided whether a budgetary constraint can negate culpability. (220) Still, some courts have been sensitive to state governments' financial concerns. (221) Thus, prison officials and other state actors often hide behind a "fiscal defense theory." (222) The theory "allows officials to argue that despite all their good faith efforts to obtain funding, fiscal constraints beyond their control prevent them from correcting unconstitutional conditions. " (223)

In contrast, legislatures may also take the blame. Under this view, "the responsibility for sub-minimal conditions in any prison inevitably is diffuse, and often born, at least in part, by the legislature." (224) When the legislature fails to adequately fund a prison, "the resulting barbaric conditions should not be immune from constitutional scrutiny simply because no prison official acted culpably." (225) Moreover, the state is not at liberty to give its prisoners only those constitutional conditions that "fit comfortably within its budget." (226)

Despite the conflicting views and their varying authority, it is undeniable that "[t]he Eighth Amendment means nothing if a state can excuse a failure to feed prisoners by claiming that it lacks the money to purchase food." (227) Conversely, fiscal constraints can "seriously limit officials' ability to act." (228) Nevertheless, the 2013 OPP consent judgment recognized that "inadequate funding will not excuse the perpetuation of unconstitutional conditions of confinement." (229) Furthermore, the consent decree declared that although the state and local government may be inconvenienced with the expense of creating and maintaining a constitutional prison, such an inconvenience will never be grounds or a defense for failure to comply. (230) However, this declaration by the court did little to help OPP clear the biggest hurdle in implementing the consent decree's mandates. It has allowed the Sheriff and the City to each skirt the blame as their yearlong debate over funding continues.

While the budget debate persists, those incarcerated in OPP continue to be subjected to unconstitutional and inhumane conditions. Proper funding is essential to every aspect of implementing the consent decree. For example, inadequate staffing is cited as the "most significant cause [] of the runaway violence at OPP." (231) A single officer is sometimes left responsible for supervising multiple floors of inmates. (232) As such, watch commanders are forced to schedule shifts with insufficient officers and "hope that nothing terrible happens." (233) Entire floors of OPP facilities at times have no guards to oversee dozens of prisoners. (234) "[The] security rounds are neither frequent enough nor thorough enough to even minimally deter or detect inmate violence." (235) The staffing issues in OPP can only be solved by proper funding. Higher deputy salaries and sufficient training will result in less turn over, resulting in a safer, less hostile, environment for the prisoners as well as the OPP personnel.

In addition, an adequate and well-managed budget is crucial to OPP inmates' medical care. Under the consent decree, "the jail will have to hire at least a dozen new nurses and other staff." (236) Their salaries, along with increasing prescription drug prices, will nearly double the jail's medical costs. (237) Since 2000, the jail has spent around $5.50 per inmate each day on healthcare. (238) According to medical director Dr. Samuel Gore, the jail will now need to spend around $9.65 per inmate each day to compensate for the increased costs. (239) Even with the increase, OPPs expenses still rank low among other U.S. cities. Fresno County, California, which has a similar sized jail, spends about $11.87 daily per inmate. (240) The Dallas jail spends around $12. (65) per inmate per day. (241) In OPP, healthcare costs are high because those in need are ignored until it is too late. The inmates become increasingly ill and spread those illnesses to other inmates as they await treatment. Accordingly, proper medical care, over time, would help to lower the costs of health care in OPP.

e. Recommendations for the Budget Issue

New Orleans, the State of Louisiana, and the OPP administration have several options available to correct the issues persist at the jail following the implementation of the consent decree. A seemingly obvious option is to raise taxes in order to come up with the adequate funding that the City claims it cannot afford. The drawback is that most of these taxes would need to pass a populous vote and the likelihood of the community voting to raise taxes for the improved conditions of prisoners is not promising. Even if the electorate were able to pass such levy, a significant drawback is that implementing a regressive tax policy, such as a sales tax, would hit the poor the hardest. Thus, the City would need to develop a tax policy that would not place the burden on those already in need and most susceptible to the penal system.

One local newspaper, The Lens, proposed two ways to properly implement the consent decree: raise taxes or cut spending elsewhere. (242) However, this paper goes a step further in outlining how the City could accomplish this. First, the City could raise sales taxes. Raising the sales tax from 5 percent to 5.575 percent would yield an additional $18 million annually. (243) Boosting the sales tax to 6 percent would yield more than $32 million annually. (244) Alternatively, the City could raise general or special property taxes. (245) Additionally, the City could eliminate the nonprofit tax exemption. (246) The City could also tax property owned by charities that have lost their tax-exempt status. (247) Finally, the City could increase the hotel-motel tax. (248)

The second option proposed to plug the budget issues facing the consent decree would be for the City and State to create new laws for the management and funding of prisons. Louisiana's current statutes regarding management and funding are too vague leaving responsible parties wiggle room to escape accountability, especially the state's incarceration rate. The current laws designate responsibility but do not consider what should occur if the Sheriff or the City, or both, Eire not meeting those responsibilities.

The consent decree is vague as to how funding issues should be resolved. In that regard, the judiciary is limited by the greater problem that is Louisiana's vague statutes regarding prison management. Louisiana, like other states that have high incarceration rates, should develop a more sophisticated way of proscribing for the management and funding of its prisons. Illustrated by the problems that plague OPP is that funding for the consent decree continues to be in a state of limbo. While the City and the Sheriff continue to point fingers and shuffle the blame, there are over 2,000 prisoners living in unconstitutional, barbaric conditions.

f. The Size Issue

Excessive incarceration is a national epidemic. Across the United States, prisons face dangerous levels of overcrowding, leading to unconstitutional conditions of confinement. Between 1970 and 2007, the U.S. prison population grew by over 700 percent, making it the world's biggest incarcerator. (249) "As of 2011, the U.S. imprisoned approximately 1.6 million offenders, or about 25% of the world's prison population, despite being home to only 5% of the world's population." (250) Sixty percent of those incarcerated in U.S. prisons are non-violent offenders. (251) "Over 2.5 million American children have a parent" serving jail time. (252) While crime rates fall nationally, the incarceration population has climbed. (253)

Fervent public support for "tough on crime" or "war-on-drugs" policies fuel state actors to continue to incarcerate instead of reforming the prison system. (254) Contrary to policies aimed at reducing the incarcerated population, legislatures have designed strict sentencing guidelines, mandatory minimums, habitual offender laws, and truth-in-sentencing mandates. (255) Over the past quarter century, both state and federal governments have "adopted [] correction policies] focused on legislating new crimes, longer terms, and incarceration [instead of] rehabilitation." (256) Such policies have placed more offenders behind bars for longer periods of time. As such, states do not have the financial capacity to "match the population influx." (257) The result is "grossly overcrowded prisons." (258)

Prison "[o]vercrowding has a negative effect on every aspect of a prisoner's life." (259) An overpopulated and dilapidated prison directly and negatively affects inmates' living conditions and imposes emotional and physical costs on inmates. (260) Overcrowding leads to "random housing assignments without assessments, deterioration of facilities, poor staff retention, and unsanitary conditions." (261) Moreover, "it ... breeds violence, ... increases health risks, ... and exposes inmates to contagious disease." (262) Overcrowded prisons do not have the resources required to provide adequate medical care and supervision. (263) Furthermore, overcrowded conditions may "affect the inmate's ability to make moral choices" or "become self-determining." (264)

In 2011, the United States Supreme Court addressed prison overcrowding in Brown v. Plata. (265) California's prisons were plagued with unconstitutional conditions of confinement that prevented the inmates from receiving adequate medical and mental healthcare. (266) The Court determined that overcrowding was the primary cause of the Eighth Amendment violation. (267) The evidence revealed that overcrowding caused understaffing, insufficient clinical space, and inadequate medical and mental health resources. (268) Thus, the Court concluded that reducing the prison population was the only workable remedy. (269) Sound familiar?

OPP is "the largest per capita county jail of any major U.S. city." (270) Louisiana has the highest incarceration rate in the world. (271) "Almost 60,000 people pass[] through OPP" in a year. (272) This is a staggering number for a city with a population of about 465,000. (273) The average length of stay for these persons passing through is twenty days. (274) Further, "[t]he largest portion of pretrial prisoners in [OPP] are there for non-violent, municipal offenses" such as traffic violations. (275) With statistics like these, it is no wonder that this is not the first time OPP has required federal intervention. However, blame for overcrowding cannot solely be placed on the Sheriff. The District Attorney, not the Sheriff, controls how many people enter OPP. The District Attorney prosecutes offenders and enforces "tough-on-crime" laws, mandatory sentences, and the like. The result is excessive incarceration and overcrowding. The overcrowding has led to the unconstitutional conditions that the consent decree is aimed to remedy.

Despite the population being one of OPPs biggest problems, the consent decree does not mandate a size or a number of beds. Katie Shwartzmann stated that she felt the number of beds was a political issue that should be left up to the community to determine. (276) Currently, OPP has approximately 2,400 inmates housed in a series of dilapidated buildings, tents, and modular structures. (277) In 2011, the City Council passed an ordinance capping the jail size at 1,438 beds. (278)

Under the 2011 ordinance, the Sheriff was given permission to build a $145 million facility (Phase II) to house 1,438 inmates in a new, main facility. (279) However, the new facility can only realistically hold about 1,200 inmates. (280) Most troubling is that the new facility is not equipped to comply with the most significant provisions of the consent decree regarding medical and mental health needs. (281) Under the decree, such inmates are to be housed as special populations and separated from other prisoners. (282) Thus, the question has been raised about whether Sheriff Gusman ever intended to comply with the ordinance in the first place. (283)

Even more dubious is that, under the 2011 ordinance, the Sheriff built Phase I, an $81.5 million kitchen-warehouse and electrical-generation structure. (284) This new kitchen and warehouse was funded by Federal Emergency Management Agency funds following Hurricane Katrina. (285) The new warehouse has caused community members to wonder how OPP ended up with a larger than necessary kitchen (that can serve 25,000-35,000 meals a day for 2,400 inmates), while the rest of the jail will not meet constitutional requirements, the newly enacted consent decree, or local ordinances. (286)

From these concerns, the size of OPP has become a finger-pointing match between the Sheriff and the City Council. According to the City Council, Sheriff Gusman led them to believe the new facility could house all prisoners, including those who need special housing under the consent decree. (287) After all, this was the requirement under the ordinance originally imposed and noticed to the Sheriff in 2011. Because the Phase II facility cannot accommodate those with medical or mental health needs, the Sheriff asked for permission to build yet another building to comply with the consent decree. Nevertheless, on August 21, 2014, the City Council unanimously voted that instead of constructing a new facility, the Sheriff would have to renovate the fourth floor of Phase II to include a medical clinic and housing for approximately 45 prisoners. (288) Whether this resolution will be carried out is questionable because City Council resolutions do not carry the force of law; therefore, they are non-binding on the Sheriff. (289)

There are those who believe building a bigger jail is the solution for constitutional compliance in OPP. The Metropolitan Crime Commission ("MCC") argues that if the jail is not big enough, the Sheriff will be forced to release dangerous criminals so as to conform to the decree and cap. (290) The MCC report suggests that the Sheriff build a third building with an additional 1,000 beds, which is almost (380-800) beds more than the Sheriff had originally asked for permission to construct. (291) However, MCC's report is met with sharp opposition as the Mayor, City Council, American Civil Liberties Union, and advocates at the McArthur Douglas Justice Center all disagree with the proposal. Mayor Landrieu stated, "New Orleans is the world's prison capital--the most incarcerated city, within the most incarcerated state, within the most incarcerated country in the world.... Unfortunately, the old, over-sized, poorly-managed and dilapidated OPP complex has too often been part of the problem, not part of the solution." (292)

Both the Mayor and Sheriff have submitted proposals to Judge Africk on the size issue. The Judge has not yet ruled on the long-term proposals; however, he stated he would prefer the jail size issue be left to the political process. (293) Judge Africk urges the Mayor and Sheriff to negotiate with each other and not force him to issue a ruling. As the negotiations among New Orleans' elected officials drag on, Judge Africk urges the parties to "focus on remedying conditions at OPP, rather than on pointing fingers." (294)

g. Recommendations for the Size Issue

There is no doubt that overcrowding is the most significant problem that prisons face, and OPP is no different. The most common solution to reform prisons is to reduce the population housed in the troubled institution. In order to do this, the City Council would need to create a strict cap on the number of persons allowed in the facility. This would need to be binding on the Sheriff, and the court would need to ensure that this cap is enforced and adhered to. In that same regard, Judge Africk could issue an order capping the size of the jail. Such a binding cap would effectively prevent the Sheriff from circumventing the City Council's ordinances as he did with the 2011 ordinance.

Reducing the number of inmates in the jail can also be accomplished by changing the sentencing laws in Louisiana. If New Orleans itself could rid itself of the "tough on crime" and "war on drugs" attitudes, it could cure more problems than just prison overcrowding. The new laws would need to provide for fewer crimes that result in jail time and more that result in paying fines. Additionally, these new laws would need to provide for sentences to be relaxed and shortened in order to attack the overcrowding issue on two fronts.

Recently, Louisiana State Treasurer John Kennedy proposed creating a charter school in OPP. Charter schools have become more prevalent throughout the New Orleans area and the Treasurer argues that OPP has too many inmates who are not educated, cannot get a job when they are released, and simply return to OPP because they have continued to live a life of crime upon their initial release. A charter school would provide prisoners with the opportunity to make use of their time while incarcerated. Training and vocational work could likely reduce the rate of recidivism in OPP, and in turn, reduce the population in the jail over time.

One of the biggest problems the Plaintiffs attorneys had in preparing their most recent suit against the Orleans Parish Sheriff was the prison's complete lack of records and data. The attorneys were forced to create their own data and records system to keep track of the inmates. Record keeping technology is readily available to large institutions. For example, hospitals are now mandated to keep all patient records electronically. Thus, it makes sense that any prison should be able to do the same. Creating and maintaining a sophisticated data system would allow inmates to be processed in a timely fashion. As such, certain areas of the prison would be less susceptible to overcrowding.


Many cities and states face the daunting task of reforming their prison systems. However, in a city that faces many problems such as higher education, natural disasters, political corruption, and the like, it is difficult to convince the community that the city jail is a priority. Nevertheless, what occurs within the walls of a prison has a significant impact on the community outside of those walls. OPP has deep rooted and systemic deficiencies that have yet to be corrected by judicial intervention. Each attempt to do so has highlighted the same unconstitutional conditions in the jail. These conditions have persisted for decades. This is because there are broader problems plaguing the jail that are not simply corrected by a court order.

(1.) Roy Walmsley, Findings 234: World Prison Population List (fifth edition), U.K. Home Office Research, Development and Statistics Directorate, (2003), http:/ uk/rds/pdfs2/r234.pdf (finding that the U.S. had the highest prison population rate (701 per 100,000), and the highest prison population (2,030,000) in 2003).

(2.) Cindy Chang, Louisiana is the World's Prison Capital, THE TIMES-PICAYUNE (May 29, 2012), http//'index.ssl/2012/05/louisiana_i.s_the_worlds_prison.html.

(3.) Jones v. Gusman, 296 F.R.D. 416, 431 (E.D. La. 2013).

(4.) Mark J. Lopez, Reactivated New Orleans Jail Case Uncovers Same Old Problems, Divisions, THE NAT'L PRISON PROJECT J., at 4-5, 14-15 (Spring 1992).

(5.) Jones, 296 F.R.D. at 424 ("The 600-800 inmates housed in the original OPP include youth inmates, maximum security inmates, and inmates with medical issues. Conchetta houses 300-400 inmates, including both youth and adult inmates, in six housing units. Templeman Phase V ... houses approximately 240 female inmates and inmates with mental health issues in nine different units. The Temporary Detention Center houses approximately 400-500 inmates in four units, each of which contains two dormitories. The tents ... collectively house approximately 500-600 inmates in a dormitory setting. Approximately 150 inmates may be present at the Intake Processing Center on a given day. Approximately 115 inmates may be present at the Warren McDaniels Transitional Work Center ... on a given day.").

(6.) In New Orleans, the sheriff is an elected official whose official title is "Criminal Sheriff."

(7.) Jordan Flaherty, The Incarceration Capital of the U.S., HUFFINGTON POST (May 25, 2011), http//

(8.) Hamilton v. Schiro, 338 F. Supp. 1016-19 (E.D. La. 1970).

(9.) Id.

(10.) Id.

(11.) Lopez, supra note 4, at 4.

(12.) Id.

(13.) Black's Law Dictionary defines a "consent decree" as "court decree [or order] that all parties agree to." BLACK'S LAW DICTIONARY 498 (10th Ed. 2014).


(15.) Hamilton v. Schiro, 338 F. Supp. 1016, 1019 (E.D. La. 1970).

(16.) Robert M. Lapinsky, Prison Conditions: The Eighth Amendment Standard and the Remedial Authority of Judges, 57 GEO. WASH. L. REV. 1387, 1405 (1989).

(17.) Id.

(18.) Melvin Gutterman, The Contours of Eighth Amendment Prison Jurisprudence: Conditions of Confinement, 48 SMU L. REV. 373, 379 (1995).

(19.) Id. at 399.

(20.) Id.

(21.) Id.

(22.) Id.

(23.) Lapinsky, supra note 16, at 1406 (quoting Johnson, The Role of the Federal Courts in Institutional Litigation, 32 ALA. L. Rev. 271, 273 (1981).

(24.) Gutterman, supra note 18, at 402.

(25.) Lapinsky, supra note 16, at 1389 (citing Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C. Cir. 1988)).

(26.) Lapinsky, supra note 16, at 1390-91.

(27.) Id. at 1405.

(28.) Id. at 1405-06.

(29.) Id. at 1406.

(30.) Id. at 1407.

(31.) Lapinsky, supra note 16, at 1406.

(32.) Id.

(33.) Gutter-man, supra note 18, at 402 (quoting Younger v. Harris, 401 U.S. 37, 44 (1971)).

(34.) Id. at 399.

(35.) Id. at 403.

(36.) Hon. Harold Baer, Jr. & Arminda Bepko, A Necessary and Proper Role for Federal Courts in Faison Reform: The Benjamin v. Malcolm Consent Decrees, 52 N.Y.L. SCH. L. REV. 3, 32 (2008).

(37.) Baer & Bepko, supra note 36, at 32.

(38.) Rhodes v. Chapman, 452 U.S. 337, 362 (1981) (Brennan, J., concurring in judgment).

(39.) Id.

(40.) Gutterman, supra note 18, at 398.

(41.) Id. at 402.

(42.) Id.

(43.) Id.

(44.) Id.

(45.) Gutterman, supra note 18, at 402.

(46.) Jones v. Gusman, 296 F.R.D. 416, 426 (E.D. La. 2013).

(47.) Gusman, 296 F.R.D. at 426.

(48.) Monitor's Report No. 2 at 5, Jones v. Gusman, No. 2:12-cv-00859 (E.D. La. Aug. 26, 2014) (Doc. 744).

(49.) Id. at 128.

(50.) Monitor's Report No. 2 at 5, Jones v. Gusman, No. 2:12-cv-00859 (E.D. La. Aug. 26, 2014) (Doc. 744).

(51.) Id. at 7.

(52.) Andy Grimm, Live Coverage of the Orleans Parish Consent Decree Hearing: Aug 28, The Times-Picayune (Aug. 28, 2014), http//

(53.) Id.

(54.) Id.

(55.) Lapinsky, supra note 16, at 1406.

(56.) Id.; see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010) (Remedying unconstitutional conditions of confinement "is a necessarily aggregate endeavor, composed of multiple elements that work together to redress violations of the law.").

(57.) Gates v. Cook, 376 F.3d 323, 332 (5th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

(58.) U.S. CONST, amend. VIII.

(59.) OPP houses both pretrial detainees as well as convicted prisoners. Thus, this standard applies to all OPP inmates.

(60.) Farmer v. Brennan, 511 U.S. 825, 832 (1970) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

(61.) Brittany Glidden, Necessary Suffering?: Weighing Government and Prisoner Interests in Determining What Is Cruel and Unusual, 49 Am. CRIM. L. Rev. 1815, 1819 (2012).

(62.) Id. at 1820 (Estelle established that prison conditions could constitute "punishment" under the Eighth Amendment.).

(63.) Id. {Estelle did not directly answer when a condition was a punishment and when it was not.).

(64.) Glidden, supra note 61, at 1820; see Hudson v. Palmer, 468 U.S. 517 (1984); see also Whitley v. Albers, 475 U.S. 312 (1986).

(65.) Rhodes v. Chapman, 452 U.S. 337 (1981) (Prisoners brought civil rights suit challenging the constitutionality of housing two prisoners in one cell.).

(66.) Rhodes, 452 U.S. at 346; Lapinsky, supra note 16, at 1390-91.

(67.) Id. at 347 (quoting Trap v. Dulles, 356 U.S. 86, 101 (1958) (plurality); Brown v. Plata, 131 S. Ct. at 1925, n. 3.

(68.) Rhodes, 452 U.S. at 347.

(69.) Farmer v. Brennan, 511 U.S. 825, 831-32 (1970).

(70.) Id. at 828.

(71.) Id.; see generally Glidden, supra note 61 (criticizing the two-part conditions test).

(72.) Glidden, supra note 61, at 1820.

(73.) Id.; Farmer, 511 U.S. at 837 (explaining that deliberate indifference requires that prison officials must "both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and must also draw the inference.").

(74.) Jones v. Gusman, 296 F.R.D. 416, 430 (E.D. La. 2013) ("In asserting that conditions at OPP are unconstitutional, Plaintiffs face a high bar.").

(75.) Jones, 296 F.R.D. at 431.

(76.) Id.

(77.) Id.

(78.) Id.

(79.) Id. at 436 (However, calculating the exact incidence rate is difficult because OPP staff members have a pattern of tolerating sexual misconduct.).

(80.) Jones, 296 F.R.D. at 436.

(81.) Id.

(82.) Id. at 432-33 (The guard started that OPP policy prohibits staff members from entering tiers alone.).

(83.) Id. at 432-33.

(84.) Id at 432-33.

(85.) Jones, 296 F.R.D. at 432-336 ("A video admitted into evidence portrays an interview with an inmate who reported a sexual assault. The inmate is 'Mirandized,' repeatedly told that nothing happened.... ").

(86.) Jones, 296 F.R.D. at 452.

(87.) Id.

(88.) Id.

(89.) Id. at 443.

(90.) Id. at 452.

(91.) Jones, 296 F.R.D. at 452.

(92.) Id.

(93.) Id. at 452 (All of this poses a major security risk for inmates, staff, and the community at large because of potential escapes.); see Claire Galofaro, 2 Inmates Came and Went as They Pleased from OPP, Bringing Drugs and Gun with Them, Fellow Prisoners Say, THE TIMES-PICAYUNE (Apr. 6, 2013), http// 1. This potential for escape was realized when three videos filmed by inmates in 2009 surfaced right before the OPP consent decree hearings. Id. The videos show inmates brandishing loaded guns, using intravenous drugs, gambling with handfuls of cash, displaying cell phones, drinking beer, and cavorting on Bourbon Street. Id. The inmates had learned to jimmy the fire escape door and come and go from the prison as they pleased. Id.

(94.) Jones, 296 F.R.D. at 445.

(95.) Id. at 445. Those with less serious, but still urgent complaints are not seen for several days. Id.

(96.) Complaint at 9, 18, Bonnette v. Hunter, No.05-1201 (E.D. La. Mar. 30, 2005).

(97.) Id. at 11.

(98.) Letter from Mary E. Howell, Esq., to Judge Lance M. Africk, U.S. Dist. Court for E. Dist. of La. (Mar. 11, 2013), available at http;//

(99.) Id.

(100.) Id.

(101.) Id.

(102.) Complaint at 1, Cantu v. Gusman, No. 11-824 (E.D. La. Apr. 13, 2011).

(103.) Id. at 10.

(104.) Id. at 2.

(105.) Id.

(106.) Id. at 13.

(107.) Letter from Mary E. Howell, Esq., to Judge Lance M. Africk, U.S. Dist. Court for E. Dist. of La. (Mar. 11, 2013), available at http//law.

(108.) Id.

(109.) Id.

(110.) Id.

(111.) Complaint at 2, Nagle v. Gusman, No. 12-1910 (E.D. La. July 23, 2012).

(112.) Id. at 3.

(113.) Complaint at 35, 37 Nagle v. Gusman, No. 12-1910 (E.D. La. July 23, 2012).

(114.) Jones v. Gusman, 296 F.R.D. 416, 443 (E.D. La. 2013).

(115.) Letter from Mary E. Howell, Esq., to Judge Lance M. Africk, U.S. Dist. Court for E. Dist. of La. (Mar. 11, 2013), available at http//

(116.) Id.

(117.) Id.

(118.) Id.

(119.) Complaint at 2, Miceli v. Gusman, No. 09-8078 (E.D. La. Dec. 31, 2009).

(120.) Id.

(121.) Id.

(122.) Id.

(123.) Id.

(124.) Letter from Mary E. Howell, Esq., to Judge Lance M. Africk, U.S. Dist. Court for E. Dist. of La. (Mar. 11, 2013), available at http//

(125.) Id.

(126.) Jones v. Gusman, 296 F.R.D. 416, 430 (E.D. La. 2013).

(127.) Andrea Armstrong, No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions, 25 STAN. L. & POL'Y REV. 435, 440 (2014).

(128.) Id.

(129.) Gutterman, supra note 18, at 406.

(130.) Brown v. Plata, 131 S. Ct. 1910, 1942 n. 10 (2011); see also Armstrong, supra note 127, at 442.

(131.) Plata, 131 S. Ct. at 1942 n.10.

(132.) Robert Weisberg, Meanings and Measures of Recidivism, 87 S. CAL. L. REV. 785, 789 (2014).

(133.) Robert Weisberg, Meanings and Measures of Recidivism, 87 S. CAL. L. REV. 785, 789 (2014).

(134.) Black's Law Dictionary defines a "consent decree" as "court decree [or order] that all parties agree to." BLACK'S LAW DICTIONARY 498 (10th Ed. 2014).

(135.) Baer & Bepko, supra note 36, at 8-9.

(136.) Jones v. Gusman, 296 F.R.D. 416, 428 (E.D. La. 2013) (citing Williams v. City of New Orleans, 729 F.2d 1554, 1559 (5th Cir. 1984)) (quoting United States v. City of Miami, 664 F.2d 435, 441 (5th Cir. 1981)) ("Courts must also ascertain that the settlement is fair and that it does not violate the Constitution, statutes, or jurisprudence.")).

(137.) Gusman, 296 F.R.D. at 428-29 (quoting Williams v. City of New Orleans, 729 F.2d 1554, 1559 (5th Cir. 1984).

(138.) Hamilton v. Schiro, 338 F.Supp. 1016 (E.D.La. 1970).

(139.) Timeline, ORLEANS PARISH PRISON REFORM COALITION (Nov. 17, 2014),

(140.) Jones, 296 F.R.D. at 470.

(141.) Lopez, supra note 4, at 4.

(142.) Id.

(143.) Id.

(144.) Id.

(145.) Jones, 296 F.R.D. at 5.

(146.) Jones, 296 F.R.D. at 5.

(147.) Id.

(148.) Id.

(149.) Id.

(150.) Id. at 14.

(151.) Jones, 296 F.R.D. at 14.

(152.) Id.

(153.) Id.

(154.) Id.

(155.) Id.

(156.) Lopez, supra note 4, at 14.

(157.) Lopez, supra note 4, at 15.

(158.) Id.

(159.) Id..

(160.) Id.

(161.) Id. at 14.

(162.) Baer & Bepko, supra note 36, at 11.

(163.) 18 U.S.C.A. [section] 3626(a)(1)(A) (West 2014). The PLRA applies to prisoners defined as "any person subject to incarceration, detention, or admission to any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 18 U.S.C.A. [section] 3626(g)(3) (West 2014).

(164.) 18 U.S.C.A. [section] 3626(a)(1)(A) (West 2014).

(165.) Pub. L. No. 104-134, 110 Stat. 1321 (1996).

(166.) Jones v. Gusman, 296 F.R.D. 416, 429 (E.D. La. 2013) (citing Frazar v. Ladd, 457 F.3d 432, 438 n. 19 (5th Cir. 2006)).

(167.) See, e.g., Porter v. Nussle, 534 U.S. 516 (2002); Miller v. French, 530 U.S. 327 (2000); Martin v. Hadix, 527 U.S. 343 (1999).

(168.) Andrew W. Amend, Giving Precise Content to the Eighth Amendment: An Assessment of the Remedial Provisions of the Prison Litigation Reform Act, 108 Colum. L. Rev. 143 (2008).

(169.) Human Rights Watch, No Equal Justice: The Faison Litigation Reform Act in the United States, 1 (June 17, 2009), pdf; Editorial, Prisoners' Rights, N.Y. Times (Sept. 24, 2009), rd=relbias%3As&_r=0 (arguing that the PLRA denies equal access to the courts to more than 2.3 million incarcerated persons in the United States and "has contributed significantly to the bad conditions--including the desperate overcrowding--that prevail today. The law must be fixed.").

(170.) Jones, 296 F.R.D at 429.

(171.) Id. at 429.

(172.) Id.

(173.) Brown v. Plata, 131 S. Ct. 1910, 1939-40 (2011) (citations omitted) (Mentally ill California prisoners brought a class action against the Governor alleging that due to prison overcrowding, they received inadequate mental health care.).

(174.) Jones, 296 F.R.D at 429 (citing Plata, 131 S. Ct. at 1941) ("Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors.").

(175.) Id. at 429-30.

(176.) 42 U.S.C.A. [section] 1997 (West 2014).

(177.) Letter from Loretta King, Acting Assistant Attorney Gen., Civil Rights Div., to Marlin N. Gusman, Orleans Parish Criminal Sheriff (Sept. 11, 2009), available at (findings letters are used to establish subjective component of the deliberate indifference standard).

(178.) Id. (findings letters are used to establish subjective component of the deliberate indifference standard).

(179.) Letter from Loretta King, Acting Assistant Attorney Gen., Civil Rights Div., to Marlin N. Gusman, Orleans Parish Criminal Sheriff (Sept. 11, 2009), available at (findings letters are used to establish subjective component of the deliberate indifference standard).

(180.) Laura Coon, U.S. Dep't of Justice, Panel: The Consent Decree-Orleans Parish Prison at the Loyola Journal of Public Interest Law Symposium: Prison Reform: Progress, Policies, & Practices (Feb. 7, 2014) (recording on file with author).

(181.) Jones, 296 F.R.D at 425.

(182.) Id. at 424-25.

(183.) Katie Schwartzmann & Maggie Yates, MacArthur Justice Ctr., Panel: The Consent Decree-Orleans Parish Prison at the Loyola Journal of Public Interest Law Symposium: Prison Reform: Progress, Policies, & Practices (Feb. 7, 2014) (recording on file with author).

(184.) Id.

(185.) Id.

(186.) Id.

(187.) Id.

(188.) Katie Schwartzmann & Maggie Yates, MacArthur Justice Ctr., Panel: The Consent Decree-Orleans Parish Prison at the Loyola Journal of Public Interest Law Symposium: Prison Reform: Progress, Policies, & Practices (Feb. 7, 2014) (recording on file with author).

(189.) Id.

(190.) Jones v. Gusman, 296 F.R.D. 416 (E.D. La. 2013).

(191.) Id. at 426.

(192.) Id.

(193.) Id.

(194.) Lopez, supra note 4, at 5.

(195.) Lopez, supra note 4, at 5.

(196.) Id

(197.) Id.

(198.) Id.

(199.) Id.

(200.) Naomi Martin, Despite Claims of Being Broke, New Orleans has Unused FEMA Funds for Prison, Court is Told, The Times-Picayune (Aug. 6, 2013),

(201.) Id.

(202.) Id.

(203.) Id.

(204.) Id.

(205.) La. Rev. Stat. Ann. [section][section] 15:702-704 (2014).

(206.) Richard Rainey, Mayor Mitch Landrieu, Sheriff Marlin Gusman Ink Temporary Deal on Orleans Parish Prison Consent Decree, The Times-Picayune (Apr. 17, 2014),

(207.) Id.

(208.) Id.

(209.) Richard Rainey, Orleans Parish Prison Consent Decree Costs Shape City Council Budget Hearing, The Times-Picayune (Oct. 31, 2013), (Sheriff Gusman requested $41.4 million for 2014. That number can be broken down as follows: $22 million for the per diem of each prisoner, medical payments, and court security details; $11.2 million in order to comply with the consent decree; $3.2 million for "jail operation costs;" and $5.2 million to cover things such as fuel and insurance.).

(210.) La. Rev. Stat. Ann. [section][section] 15:702-704 (2014).

(211.) La. Rev. Stat. Ann. [section] 15:704 (2014).

(212.) La. Rev. Stat. Ann. [section] 15:702 (2014). The City argued that this was unorthodox; however, see Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. Rev. 550, 562-63 (2006) which suggests this arrangement is not uncommon. Also, this relationship could incentivize sheriffs to seek out broad, expensive consent judgments.

(213.) Richard Rainey, Orleans Parish Faison Consent Decree Costs Shape City Council Budget Hearing, THE Times-Picayune (Oct. 31, 2013),

(214.) Jones v. Gusman, 296 F.R.D 416, 459 (E.D. La. 2013).

(215.) Id.

(216.) Gutterman, supra note 18, at 399-400.

(217.) Id.

(218.) Id.

(219.) This occurs because the federal government is ordering the expenditure of state funds.

(220.) Barbara Kritchevsky, Is There a Cost Defense? Budgetary Constraints as a Defense in Civil Rights Litigation, 35 RUTGERS L.J. 483, 497 (2004) (In Wilson v. Seiter, the court stated that "constraints" facing officials are relevant to assess culpability. The four dissenting Justices argued the majority's decision left open the possibility for prison officials to defeat Eighth Amendment claims by showing insufficient funding caused the conditions.).

(221.) Id at 485.

(222.) Gutterman, supra note 18, at 400.

(223.) Id

(224.) Kritchevsky, supra note 220, at 552 (quoting Farmer v. Brennan, 511 U.S. 832 (1970)).

(225.) Id

(226.) Kritchevsky, supra note 220, at 514 n. 155 (quoting Pugh v. Locke, 406 F. Supp. 318, 330 (M.D. Ala. 1976)).

(227.) Id. at 485.

(228.) Id.

(229.) Jones v. Gusman, 296 F.R.D 416, 458 (E.D. La. 2013) (quoting Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980)).

(230.) Id. (citing Gates v. Collier, 501 F.2d 1291, 1332 (5th Cir. 1974)).

(231.) Id. at 432.

(232.) Id. at 458.

(233.) Id.

(234.) Richard Rainey, Orleans Parish Prison Consent Decree Costs Shape City Council Budget Hearing, The Times-Picyaune (Oct. 31, 2013),

(235.) Jones, 296 F.R.D. at 432 (Inmates are forced to "kick on the cell" or "take something and ram it across the bars" to alert staff members when assistance is needed.).

(236.) Naomi Martin, Orleans Parish Prison Medical Costs Expected to Nearly Double as Consent Decree Begins, City Council is Told, The Times-Picayune (Nov. 12, 2013),

(237.) Id.

(238.) Id.

(239.) Id.

(240.) Id.

(241.) Naomi Martin, Orleans Parish Prison Medical Costs Expected to Nearly Double as Consent Decree Begins, City Council is Told, The Times-Picayune (Nov. 12, 2013),

(242.) Charles Maldonado, How could city of New Orleans raise money to pay for police, jail consent decrees?, The Lens (Aug. 22, 2013), decree/.

(243.) Id.

(244.) Id.

(245.) Id.

(246.) Id.

(247.) Charles Maldonado, How could city of New Orleans raise money to pay for police, jail consent decrees?, The Lens (Aug. 22, 2013), decree/.

(248.) Id.

(249.) Lauren Salins & Shepard Simpson, Efforts to Fix A Broken System: Brown v. Plata and the Faison Overcrowding Epidemic, 44 Loy. U. Chi. L.J. 1153, 1157 (2013).

(250.) Id.

(251.) Sean McElwee, America's Awful, Terrible, No Good, Very Bad Prison System, The Huffington Post (July 1, 2013), ncarceration-america_b_3528901.html.

(252.) Id.

(253.) Id.

(254.) Baer & Bepko, supra note 36, at 15-17.

(255.) Salins, supra note 249, at 1159-60.

(256.) Baer & Bepko, supra note 36, at 16.

(257.) Salins, supra note 249, at 1161.

(258.) Id.

(259.) Gutterman, supra note 18, at 404-05.

(260.) Id. at 404-05.

(261.) Salins, supra note 249, at 1161.

(262.) Gutterman, supra note 18, at 405.

(263.) Salins, supra note 249, at 1161.

(264.) Gutterman, supra note 18, at 405-06.

(265.) Brown v. Plata, 131 S. Ct. 1910 (2011).

(266.) Id. at 1923.

(267.) Plata, 131 S. Ct. at 1923-1924.

(268.) Plata, 131 S. Ct. at 1923-1924.

(269.) Id. at 1947.

(270.) Jordan Flaherty, The Incarceration Capital of the US, The Huffington Post (May 25, 2011), incarceration-capital_b_781150.html.

(271.) Id.

(272.) Id.

(273.) Id.

(274.) Id.

(275.) Jordan Flaherty, The Incarceration Capital of the US, The Huffington Post (May 25, 2011), http://www.huffingtonpost.corn/jordan-flaherty/the incarceration-capital_b_781150.html.

(276.) Katie Schwartzmann, Panel: The Consent Decree-Orleans Parish Prison at the Loyola Journal of Public Interest Law Symposium: Prison Reform: Progress, Policies, & Practices (Feb. 7, 2014) (recording on file with author).

(277.) Jim Mustian, Sheriff Gives Tour of New Parish Prison, The Advocate (Feb. 22, 2014),

(278.) Naomi Martin, Orleans Parish Prison Reform Coalition Demands Mayor Mitch Landrieu Enforce 1,438-bed Cap on New Jail, The Times-Picayune (Sept. 13, 2013),

(279.) Naomi Martin, Orleans Parish Jail Size Debate Begins in City Council Committee, The Times-Picayune (Dec. 3, 2013),

(280.) Susan Buchanan, Size of Rebuild at Orleans Parish Prison is Scrutinized, The Huffington Post (Dec. 1, 2013), orlean_b_4369254.html.

(281.) Id.

(282.) Id.

(283.) Andrew Vanacore, Council to Revisit Orleans Parish Jail-size Issue, The Advocate (Dec. 5, 2013),

(284.) Susan Buchanan, Size of Rebuild at Orleans Parish Prison is Scrutinized, The Huffington Post (Dec. 1, 2013), orlean_b_4369254.html.

(285.) Id.

(286.) Id.

(287.) Id.

(288.) Richard Rainey, New Orleans City Council Protests Sheriff Gusman's Proposal for New Orleans Parish Prison Building, The Times-Picayune (Aug. 21, 2014),

(289.) Id.

(290.) Naomi Martin, Build Bigger Orleans Parish Prison, Metropolitan Crime Commission Urges in New Report, The Times-Picayune, (Aug. 27 2014),

(291.) Id.

(292.) Id.

(293.) Id

(294.) Naomi Martin, Mayor Landrieu and Sheriff Gusman Reach Deal on Funding OPP Reforms through 2013, The Times-Picayune (Oct. 21, 2013),
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Author:Faia, Alexandra E.
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