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Thursday, July 25, 2024 | Back issues
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AZ Law Denying Bail to Immigrants Struck Down

(CN) - In denying bail to undocumented immigrants charged with a range of felony offenses, Arizona went too far to address a relatively minor problem, the full 9th Circuit ruled Wednesday.

Pushed by two now-disgraced elected officials, voters in the state approved the law known as Proposition 100 in 2006. It prohibits bail and pretrial release for all undocumented immigrants arrested for serious felonies, but also for nonviolent crimes such as unlawful copying of a sound recording, altering a lottery ticket, tampering with a computer and theft of property.

The brainchild of then-Rep. Russell Pearce, who went on to engineer the state's controversial S.B. 1070, Proposition 100 received vocal backing from then-Maricopa County Attorney Andrew Thomas.

They both claimed that Arizona had a major problem with illegal immigrants jumping bail and avoiding prosecution, and that the law would help change that.

Two criminal suspects denied bail under the new law launched a challenge in 2007 with the help of the American Civil Liberties Union, alleging violations of their due-process rights.

Angel Lopez-Valenzuela was denied bail for a drug-smuggling charge, while Isaac Castro-Armenta was denied bail for aggravated assault with a deadly weapon, kidnapping, and assisting a criminal syndicate. They hoped to represent a class against Maricopa County, Sheriff Joe Arpaio and others.

Though a divided three-judge panel of the 9th Circuit affirmed summary judgment for the state last year, the appellate court agreed this past January to rehear the case en banc. The court reversed 9-2 on Wednesday, finding the law unconstitutionally broad and "sweeping."

"Proposition 100 categorically denies bail or other pretrial release and thus requires pretrial detention for every undocumented immigrant 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," Judge Raymond Fisher wrote for the majority. "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.'"

Given the relative absence of evidence that Arizona ever truly had an "acute" problem with illegal immigrants jumping bail, the court found the law "excessive in relation to the state's legitimate interest in assuring arrestees' presence for trial."

"Even if some undocumented immigrants pose an unmanageable flight risk or undocumented immigrants on average pose a greater flight risk than other arrestees, Proposition 100 plainly is not carefully limited because it employs an overbroad, irrebuttable presumption rather than an individualized hearing to determine whether a particular arrestee poses an unmanageable flight risk," the ruling states (emphasis in original).

Judge Richard Tallman argued, in one of two dissents, that the majority had denied the state and its voters their deserved deference. He was joined by Judge Diarmuid O'Scannlain, who also wrote his own dissent.

"In striking down Proposition 100, the majority sets aside the policy judgment of the Arizona legislature and nearly 80 percent of Arizona's voting electorate, telling the state it really doesn't have an illegal immigration problem adversely affecting its criminal justice system," Judge Tallman wrote. "But Arizonans thought Proposition 100 was the solution to an ineffective bail system that was letting too many illegal aliens avoid answering for their serious felony charges. They were concerned that these offenders, who often lack community ties, too often skirt justice by fleeing the state or the country before trial. Plaintiffs-Appellants Lopez-Valenzuela and Castro-Armenta are good examples. Between the two of them they were charged with aggravated assault with a deadly weapon, kidnapping, theft by extortion, assisting a criminal syndicate, and transportation of a dangerous drug."

Tallman noted that, in a 2006 interview on CNN's "Lou Dobbs Tonight," then-Maricopa County Attorney Thomas said that Arizona had a "tremendous problem with illegal immigrants coming into the state, committing serious crimes, and then absconding, and not facing trial for their crimes."

"Faced with this continuing problem, Arizona took a logical next step by denying bail to illegal aliens who commit serious felony offenses," he wrote. "Because Proposition 100 is not excessive in relation to Arizona's compelling regulatory interest in ensuring that illegal aliens who commit serious felony offenses stand trial, I respectfully dissent."'

A disciplinary panel disbarred Thomas in 2012, finding that he had abused his power by targeting political rivals on the Maricopa County Board of Supervisors with unsubstantiated criminal investigations and charges.

Pearce, Proposition 100's sponsor in the Arizona Legislature, was recalled by voters in 2011.

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