Arizona Law Denying Bail to Undocumented Immigrants Faces Dim Future

Sheriff Joe Arpaio outside Tent City, where he decided to create a special segregated section for people in the country illegally.
Sheriff Joe Arpaio outside Tent City, where he decided to create a special segregated section for people in the country illegally.
Matthew Hendley

Maricopa County Bill Montgomery was dealt another loss yesterday in his bid to keep alive Arizona's Proposition 100, the 2006 law that denies bail to undocumented immigrants accused of many crimes in the state.

Last month, a panel of judges from the U.S. Ninth Circuit Court of Appeals found the voter-approved law unconstitutional, and yesterday, the U.S. Supreme Court ruled that it won't stay the lower court's ruling.

This refusal to block the overturning of Arizona's law means bail hearings for the undocumented in Arizona jails are likely coming soon.

See also: -Arizona Law Denying Bail to Undocumented Immigrants Found Unconstitutional -Bill Montgomery Files Emergency Motion to Block Ruling on Bail for Undocumented

"In the weeks ahead, we will endeavor to meet the challenge of responding to motions to review conditions of release that will now be filed as a consequence of the Ninth Circuit's callous rejection of legitimate state interests and the Supreme Court's disappointing indifference," County Attorney Montgomery says in a statement.

Dan Pochoda, the legal director of the ACLU of Arizona, tells New Times the formal order preventing the state from enforcing this law will likely be set in place by a federal judge some time next week.

Although Montgomery won't earn a stay on the overturning of the law, he still vows to appeal the case to the Supreme Court. Justice Clarence Thomas, in begrudgingly agreeing to deny the stay, filed a statement saying it's unlikely that the minimum number of justices would agree to hear the case.

Pochoda says it's "a very strong indication by Justice Thomas that the Supreme Court will not being accepting the case."

However, Thomas, joined by Justice Antonin Scalia in the statement, said they did want the court to review the case (a minimum of four of the nine justices must vote to hear the case).

"At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment," their statement says.

Arizona voters overwhelmingly approved the change to the Arizona Constitution in 2006, after it was referred to the ballot by state lawmakers, led by then-Senate President Russell Pearce.

Although the average citizen can still be granted bail if they're being charged with a class-four felony or above, the same could not be said about undocumented immigrants under Prop. 100, who were required to stay in jail while waiting for trial.

In overturning the law last month, the appellate court's opinion explained that the thought behind the law was that undocumented immigrants, in general, pose a flight risk, but no one provided any evidence in the case that this is true.

"Indeed, [Prop. 100] mandates pretrial detention even when the state concedes that the arrestee does not pose a flight risk," the opinion stated, later saying, "Although the state has a compelling interest in assuring that arrestees, including undocumented immigrants, appear for trial, Proposition 100 is not carefully limited to serve that interest."

In Maricopa County, Prop. 100 has been used as something of a tool against illegal immigration. People picked up by Joe Arpaio's Maricopa County Sheriff's Office in workplace raids are routinely charged by the Maricopa County Attorney's Office with forgery or identity-theft crimes that keeps the immigrants locked up until trial.

Arpaio and Maricopa County Attorney Bill Montgomery are named as defendants in the class-action lawsuit that led to the law being overturned.

Got a tip? Send it to: Matthew Hendley.

Follow Valley Fever on Twitter at @ValleyFeverPHX. Follow Matthew Hendley at @MatthewHendley.


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