SAN FRANCISCO — The American Civil Liberties Union has urged a federal
appeals court to strike down an Arizona law that denies bail to immigrants in
the country illegally, a voter-approved measure that Arizona’s lawyers call
necessary to prevent criminal suspects from fleeing the U.S.
ACLU attorney Cecelia Wang on Tuesday asked a 9th Circuit U.S. Court of Appeals
panel to find the law unconstitutional, saying people in the country illegally
who are charged with crimes are being unfairly singled out as flight risks.
The case marks the latest battle over Arizona’s crackdowns on illegal
immigration from the past decade. Arizona voters passed the law in 2006 to deny
bail to people who are in the country illegally and charged with certain
felonies, such as murder, sexual assault and even aggravated identity theft.
Wang argued that no empirical data exist that show immigrants are any more of a
flight risk than others cut loose before their final court appearances.
The ACLU and other legal aid groups maintain that the Latino detainees are
unfairly held while other nationalities are allowed to put up bond in exchange
for their freedom before trial.
“It’s unfair to subject a certain subsection of the population to rules that
don’t apply to everyone else,” Wang said.
Lawyers for the state argue that the law prevents defendants from fleeing the
country before their court hearings.
Arizona Assistant Attorney General Tim Casey noted that Proposition 100 was
approved by 78 percent of the voters. Casey argued that the law is in the
“compelling interest in keeping Arizona safe and undocumented workers out of
A smaller three-judge panel rejected the ACLU’s arguments in 2011, but the
organization appealed to a larger en banc panel of 11 judges.
Four of the judges Tuesday asked questions of both sides but gave no indication
of how they would rule. One judge, Marsha Berzon, asked rhetorically, “How does
one overturn the will of an overwhelming majority of voters to support the
It could take months before the court rules, and the outcome can be appealed to
the U.S. Supreme Court.
Arizona is one of at least three states with laws confronting the issue of bail
for people in the country without authorization. Missouri and Virginia have
Arizona passed the no-bail law as it targeted illegal immigration through a
series of measures in the Legislature and at the ballot box. It was among four
immigration proposals approved by Arizonans in 2006. The no-bail law was
proposed by then-state Rep. Russell Pearce, who would later succeed in pushing
through Arizona’s landmark 2010 immigration enforcement law.
The challengers say the push by the Arizona Legislature to put the measure on
the ballot was permeated with the intent to punish people in the country
illegally for federal immigration violations. They also argue the state law is
trumped by federal law.
The lawyers defending the law say its intent was to improve public safety, not
punish people for federal immigration violations. They also said the state law
doesn’t conflict with federal law.