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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Anti-Immigrant AZ Law Given Temporary Stay

(CN) - An Arizona law that denies bail to undocumented immigrants charged with certain felony offenses found a temporary reprieve from the U.S. Supreme Court.

Approved by Arizona voters in 2006, Proposition 100 prohibited bail and pretrial release for all undocumented immigrants arrested for serious felonies. It also applied to nonviolent crimes such as unlawful copying of a sound recording, altering a lottery ticket, tampering with a computer and theft of property.

An en banc panel of the 9th Circuit struck down the law last month, finding that the pretrial-detention statute violated the due-process rights of arrestees.

"Proposition 100 categorically denies bail or other pretrial release and thus requires pretrial detention for every undocumented migrant charged with any of a broad range of felonies, regardless of the seriousness of the offense or the individual circumstances of the arrestee, including the arrestee's strong ties to and deep roots in the community," the Oct. 15 majority opinion states. "The defendants maintain that this unusual, sweeping pretrial detention statute, directed solely at undocumented immigrants, comports with substantive due process. It does not. The Supreme Court has made clear that "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.'"

Maricopa County Attorney William Montgomery filed an emergency motion to stay the 9th Circuit's ruling so he could develop a record as to whether the appellate judges were correct in finding that the problem of illegal immigrants jumping bail in Arizona was not "acute."

Alternatively, Montgomery sought to file a petition for certiorari in the Supreme Court.

After the 9th Circuit refused to stay the mandate on Oct. 31, the defendants followed up with a 111-page motion for a stay in the Supreme Court.

Justice Anthony Kennedy put the 9th Circuit's mandate in the case on hold late Friday, pending a response to Maricopa County and Sheriff Joe Arpaio's motion for a longer stay pending appeal.

A response by the plaintiffs in case, which are represented by the ACLU Foundation of Arizona, is due Monday, Nov. 10.

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