Arizona Law Denying Bail to Undocumented Immigrants Found Unconstitutional

Arizona's Proposition 100, the 2006 law that denies bail to undocumented immigrants accused of many crimes in the state, will no longer be in effect in the near future.

A panel of judges from the U.S. Ninth Circuit Court of Appeals found the voter-approved law unconstitutional, as a violation of these immigrants' rights to due process.

"It's a terrific win, primarily for the people," Dan Pochoda, the legal director of the ACLU of Arizona, tells New Times.

See also: -Bill Montgomery Is No Immigration Moderate

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.

The law treats the undocumented differently on its face. Although the average person can still be granted bail if they're being charged with a class-four felony or above, the same can not be said about undocumented immigrants, who must stay in jail while waiting for trial.

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 today's ruling. Neither Arpaio's nor Montgomery's spokesmen immediately responded to New Times' request for comment.

An order needs to be written by the district court before these provisions of Prop. 100 are no longer enforced, which will likely happen in the coming weeks.

"This [decision] will automatically allow [the courts] to take away the unnecessary loss of liberty before any finding of guilt," Pochoda says. "It doesn't mean they get bail automatically -- they're in the same boat as all other people accused of criminal charges in this state."

The court's 9-2 decision describes multiple problems with the law, each getting back to various violations of due process.

"The plaintiffs contend that the Proposition 100 laws violate substantive due process," the majority opinion of the Ninth Circuit's en banc panel states. "We agree."

The court's opinion explains that the thought behind the law was that undocumented immigrants, in general, pose a flight risk, but no one's provided any evidence in the case that this is true.

The claim that undocumented immigrants are more of a flight risk was a go-to line of disbarred former Maricopa County Attorney Andrew Thomas, who championed Prop. 100, and is slammed in the footnotes of the opinion in this case:

As part of the 2006 campaign in favor of Proposition 100, County Attorney Thomas asserted that "[f]ar too many illegal immigrants accused of serious crimes have jumped bail and slipped across the border in order to avoid justice in an Arizona courtroom." He also told Lou Dobbs Tonight 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, either because they jump bail after they are out, or because, when they are let out on bail, the federal government deports them." The record does not substantiate Thomas' claims, however, and he is not a credible source. He was disbarred in 2012 for using his office to destroy political enemies, filing malicious and unfounded criminal charges, committing perjury and engaging in a host of other crimes, and the state bar committee found that he had "outrageously exploited power," "flagrantly fostered fear," "disgracefully misused the law" and "dishonored, desecrated, and defiled" the public trust.
The point is, according to the opinion, is that courts have ruled that restrictions placed on bail need to address an "acute problem," which the judges argue isn't being done here.

"Indeed, [Prop. 100] mandates pretrial detention even when the state concedes that the arrestee does not pose a flight risk," the opinion states, 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."

UPDATE 3:27 p.m.: We received the following statement from County Attorney Bill Montgomery:

"There is an obvious disconnect between the Court's focus on a policy disagreement and the rhetoric of eight years ago with what is actually going on today. It is a fact that persons committing crimes in Maricopa County who are present without lawful authority have failed to appear when admission to bail was a regular practice. In these circumstances, since conditions of release include the admonition to be law abiding, we have the immediate reality of matters where a person accused of a crime is simultaneously in violation of federal law due to federal inaction, incompetence, and indifference. Rather than protect public safety and victims of crime, the Ninth Circuit has chosen to create a victim class of criminals. We are currently reviewing and determining our next steps in this matter."

Got a tip? Send it to: Matthew Hendley.

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

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Matthew Hendley
Contact: Matthew Hendley