Denying Immigrants Bail in Arizona Clears Review

(CN) - Arizona is not trying to punish and control illegal immigration by denying bail to illegal immigrants charged with a serious felony, the 9th Circuit ruled Tuesday.

The federal appeals court in San Francisco found that the 2006 voter-approved law known as Proposition 100 is meant to further "the legitimate goal of controlling flight risk," and does not violate the U.S. Constitution.

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

Their ACLU-filed 2007 complaint claimed that it violated their due-process rights set down in the Sixth, Eighth and 14th Amendments to prohibit bail for all suspected illegal immigrants charged with certain felonies.

Phoenix-based U.S. District Judge Susan Bolton granted the defendants summary judgment, and a divided three-judge panel of the 9th Circuit affirmed Tuesday.

While illegal immigration definitely came up in the March 2005 committee meeting during which lawmakers discussed the bill that eventually became Prop. 100, "the record as a whole does not show that Proposition 100 was motivated by an improper punitive purpose," Judge Richard Tallman wrote for the majority.

The bill's sponsor, then-Rep. Russell Pearce, who would later be the driving force behind the state's controversial S.B. 1070, "mentioned flight risk and public safety as the primary reasons behind the Proposition 100 laws three different times" during the meeting, Tallman found.

"Thus, while it is clear from the record that Arizona lawmakers were concerned with the effects of illegal immigration when they were debating the Proposition 100 laws, a fair reading of the record does not support Plaintiffs-Appellants' argument that Proposition 100's primary purpose is to punish and deter immigration offenses," he wrote.

Dan Pochoda, legal director of the ACLU of Arizona, said his team is discussing the ruling and "considering seeking en banc review."

Judge Raymond Fisher used a lengthy dissent to also single out Pearce, who fell victim to a citizen recall effort in 2011. Fisher noted that "Rep. Pearce promoted the bill on the ground that 'all illegal aliens in this country ought to be detained, debriefed and deported.'"

Such rhetoric shows a strong punitive approach to lawmaking, and it reveals the philosophy behind a law that "contravenes the Constitution's fundamental prohibition on punishment before determination of guilt in a criminal trial," the dissent states.

"Arizona ... has decided to deny pretrial bail to all persons arrested for a range of felony crimes who are in the United States without authorization, theorizing they are likely to flee the country solely because of their immigration status," Fisher added. "Without any evidence that unauthorized immigrants released on bail have been or are less likely to appear for trial compared to arrestees who are lawful residents, the majority accepts Arizona's unsupported assertion that all unauthorized immigrants necessarily pose an unmanageable flight risk, such that a blanket denial of bail is not an 'excessive' tool to combat flight risk. As revealed by Proposition 100's legislative history and scope, however, Arizona is plainly using the denial of bail as a method to punish 'illegal' immigrants, rather than simply as a tool to help manage arrestees' flight risk."

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