PHOENIX — A federal appeals court has decided to rehear arguments over
complaints that an Arizona law that denies bail to people who are in the country
illegally and charged with certain felonies violates their constitutional right
to due process.
A three-member panel of the 9th Circuit U.S. Court of Appeals rejected a
challenge to the law in June, but those seeking to overturn it, including
lawyers from the American Civil Liberties Union, succeeded in getting a larger
panel of the court to review the case again. The decision was issued this week.
Arguments are now set for the week of March 17 before an 11-member panel of
Proposition 100 was overwhelmingly approved by Arizona voters in 2006. The law
denies bail outright to defendants who are in the country illegally and charged
with certain felonies, including murder and sexual assault, under the premise
that the suspects are considered a flight risk.
But the law also covers crimes such as conspiracy to commit human smuggling and
Detractors argue the law violates numerous constitutional clauses, including
the right of the accused to have their cases heard before a determination is
made regarding bail.
“Obviously, we’re delighted the court has decided to rehear the case,” ACLU
attorney Cecillia Wang said Friday. “Proposition 100 is really unprecedented
law in U.S. history applying this no-bail rule. It’s really contrary to the
fundamental principles that you’re innocent until proven guilty.”
Maricopa County Attorney Bill Montgomery, who is named as a defendant in the
lawsuit, declined comment Friday.
In supporting the law, then-Maricopa County Attorney Andrew Thomas said in 2006
it was needed to ensure the defendants stick around to answer for their crimes.
“Arizona has a tremendous problem with illegal immigrants coming into the
state, committing serious crimes, and then absconding, and not facing trial for
their crimes, either because they jump bail after they are let out, or because,
when they are let out on bail, the federal government deports them,” Thomas
said in a television interview at the time, according to court records.
In the original ruling by the appeals court panel in June, the judges found the
law did not run afoul of the Constitution.
“Denial of bail without individualized consideration of flight risk or
dangerousness is not unusual,” wrote Judge Richard Tallman. “After all, the
vast majority of states categorically deny the right to bail to persons charged
with capital crimes, and at least eight states categorically deny bail to those
charged with crimes punishable by life imprisonment.”
In a dissenting opinion, however, one of the three judges vehemently disputed
“By employing a no-bail scheme that conclusively equates unlawful immigration
status with unmanageable flight risk, Arizona is needlessly locking up
undocumented immigrant arrestees awaiting trial under the guise of assuring
their appearance at trial,” Judge Raymond Fisher wrote.
He added that the true intent of the law was to punish defendants “for their
assumed undocumented status and for their suspected but unproven crimes.”