Hickman, along with the county, all the county judges and five bail hearing officers, has been sued for participating in what a national civil rights group calls an unconstitutional bail system. The group that sued on behalf misdemeanor defendants, Civil Rights Corps, argue that poor people in Harris County are being systematically jailed before trial just because they cannot afford to pay an arbitrary bail amount, unlike wealthier people charged with the same crime.
While Hickman has voiced support for bail reform in the past, he and his lawyers have nonetheless insisted he be dismissed from this lawsuit since he is simply complying with court orders from judges to house these people in the jail. Civil Rights Corps, however, argues that since many of these people are being held unconstitutionally, the sheriff is still liable. And it just so happens that Hickman's successor agrees.
In an affidavit presented before U.S. District Judge Lee Rosenthal in federal court on Monday, Gonzalez called the county's bail system unconstitutional and asked Rosenthal to keep the sheriff in the lawsuit —essentially encouraging Civil Rights Corps to continue to sue the office he will soon inherit.
Here's Gonzalez's statement, in part:
Gonzalez said that reforming the bail system will be an “urgent priority” of his as soon as he takes office on January 1. He says once he is officially sheriff he will tell his lawyers to withdraw the sheriff's motion to dismiss and will instead work toward a resolution with all the other parties. “A reformed system should fully addresses [sic] public safety concerns but also protects the dignity and civil rights of every individual - rich or poor - who comes into contact with the jail and my deputies,” he said. “Our current money bail system does not achieve these goals.”
“The County's widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually undermines public safety. …. Though I respect Sheriff Hickman, I respectfully disagree with his and his lawyers' position that the Sheriff should not even be a party to this case. I believe that the current operation of the money bail system, including the Sheriff's active participation in that system, violates the United States Constitution. ...A person's access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.”
Gonzalez's premature involvement places the Harris County Attorney's Office and its hired private attorneys in a somewhat awkward position: Once Gonzalez assumes office, county attorneys will be representing a public official whose views are seriously at odds with their entire argument — that nothing is legally wrong with the county's bail system.
While the county raised ethical concerns in court yesterday about Gonzalez filing an affidavit apparently in support of the party that is suing him, Judge Rosenthal did not find any problems with it. In fact, one attorney from the Houston law firm Susman Godfrey, which is representing the plaintiffs along with Civil Rights Corps, argued that the greater ethical concern was Gonzalez being “represented” by people who do not represent his views.
Judge Rosenthal is expected to decide soon on which parties will remain in the lawsuit.
The county argued Monday that its bail practices are not in violation of the Constitution since defendants see a magistrate within 48 hours (most of the time). Plus, county attorneys said, magistrates have the information in front of them to consider a defendant's ability to pay, as the Constitution requires. Civil Rights Corps lead attorney Alec Karakatsanis, however, repeatedly argued that the county was missing the mark: The point, he argued, is that magistrates systematically choose not to consider a defendant's ability to pay bail, sending low-level, low-risk defendants to jail instead of giving them a personal bond.
Even Judge Rosenthal seemed un-enthused with the county's argument at one point, reminding attorneys: “[Magistrates] could consider defendants' ability to pay, but allegedly, they do not. That's the allegation here.”
Rosenthal set another hearing date for January, giving the parties enough time to talk to newly elected officials Gonzalez and District Attorney-elect Kim Ogg about how they plan to move forward come January 1.