Bill Montgomery's Ghost of Christmas Present: Injustice

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If there were a law against keeping parents from their children for no good reason on Christmas, or any other day, then Maricopa County Attorney Bill Montgomery, and many of his functionaries, would be guilty as charged.

Currently, neither the county attorney's office nor the Maricopa County Sheriff's Office can tell me how many moms, dads, sons and daughters are being held non-bondable this Christmas under Prop 100, the state constitutional amendment passed overwhelmingly by Arizona voters in 2006.

See also: -S.A.N.E. Immigration Initiative Undercut by Bill Montgomery's Nativist Panderings -A Woman Was Held in Jail Because Authorities Thought She Was Illegal -A Glendale Mom Was Falsely Imprisoned; Now the State Wants to Cancel Her U.S. Birth Certificate

That law, primarily pimped at the time by now-recalled ex-state Senate President Russell Pearce, denies bail to those believed to be in the country illegally and presumed guilty of a "serious felony."

A "serious felony" is defined by statute as a class 4 felony or above, which means someone accused of using a false ID or Social Security Number to obtain employment can be held for months prior to trial, all for the heinous offense of, um, working.

Yeah, you read that right. Working.

This stupidity puts otherwise law-abiding residents of this state -- many with significant ties to the community -- in the same category as murderers, serial rapists, child molesters, and the like, all of whom can be denied bail under Arizona law.

So if you've committed manslaughter, grand theft auto, armed robbery, aggravated assault, or any number of violations of criminal law, a judge will set a bail amount.

And if you can pay the bondsman, you're free until proven guilty by jury of your peers and sentenced accordingly.

But if you're undocumented, and you stand accused of obtaining employment with a fake ID and/or Social Security Number, you'll have to kibbutz with the killers till your trial date, or until you make a Hobson's choice offered by the county attorney: plead to a class 6 felony, and risk deportation, or rot in Sheriff Joe Arpaio's gulags for the time being.

The policy is a gross violation of both the Arizona and U.S. Constitutions, as well as state and federal court rulings dictating that bail should be denied only in rare circumstances and that denial of bail should not be used as a form of punishment. This, according to a team of Phoenix lawyers now battling the MCAO on behalf of their undocumented clients.

These four immigration attorneys -- Delia Salvatierra, Dori Zavala, Johnny Sinodis, and Ray Ybarra -- argue that the county attorney's application of Prop 100 runs contrary to the U.S. Supreme Court's June decision on Senate Bill 1070 in United States v. Arizona.

Among the sections of SB 1070 struck down by the high court was a section penalizing aliens for seeking unauthorized employment, section 5(c).

Writing for the majority, Justice Anthony Kennedy found that section 5(c) was preempted by the federal Immigration Reform and Control Act, a comprehensive scheme for "combating the employment of illegal aliens."

There may be legal consequences under IRCA for aliens "seeking or engaging authorized work," or for obtaining "employment through fraudulent means," but the onus of the law falls mostly on employers.

"IRCA's framework," writes Kennedy, "reflects a considered judgment that making criminals out of aliens engaged in unauthorized work -- aliens who already face the possibility of employer exploitation because of their removable status -- would be inconsistent with federal policies and objectives."

The immigration A-Team I've cited above claims that the county attorney is using Prop 100 as a means of jailing and therefore punishing undocumented workers, which states are prevented from doing under U.S. v Arizona.

The undocumented rounded up in Sheriff Joe's employment raids and elsewhere are being charged systematically with forgery and taking the identity of another, even when there is no victim and there is no intent to defraud on the part of the accused.

Why? Because those are class 4 felonies. Prop 100 does not allow a judge to set bail, if there is probable cause to believe the defendant has entered or remained in the country illegally, and "the proof is evident or the presumption great" that the defendant has committed a class 4 felony or above.

The county attorney has other options, according to the immigration A-Team. These individuals could be charged with a class 6 felony of presenting a false instrument, for instance. They then could obtain bail and make bond, pending their trials.

(Note: Underage kids seeking to buy liquor with a fake ID usually do not face being charged with a felony, and are charged with a class 3 misdemeanor instead.)

Often these undocumented individuals are not a flight risk. Their families and lives are here in the United States. Many have been here most of their lives.

Also, there is no intent to defraud, as required by statute. Rather, their intent is to work and to feed their families.

Regardless, the MCAO pursues multiple counts of class four felonies against such persons, holding them for months, pressuring them to plead guilty to a class 6 felony, after which they may be turned over to U.S. Immigration and Customs Enforcement and deported.

As attorney Dori Zavala stated in a brief on behalf of her client Octavio Castaneda-Flores, a 27 year-old former worker at Ashley Furniture who's been jacked up on eight counts of fraud and identity theft, the MCAO's actions are insidious.

"[The county attorney's office] utilizes this pattern and practice of charging non-citizen defendants with class 4 felonies and higher in order to carry out its own immigration enforcement priorities by denying bond to these individuals," wrote Zavala.

Her client Castaneda-Flores has been in the country since he was 15 years old.

He has three young U.S. citizen children, and he has an application pending with the federal government under President Obama's Deferred Action for Childhood Arrivals.

Though Castaneda-Flores allegedly had been using someone else's identity to work, there is no evidence that he intended to defraud anyone. Nor is he a threat to the community.

The county attorney offered him a deal, allowing him to plead guilty to the class six. But to do so would risk removal from the United States and separation from his children, whom he had not seen since he was arrested in September.

So Zavala asked for a so-called "Simpson hearing," where she could challenge the state holding her client as non-bondable.

In her request for a Simpson hearing, Zavala presented the arguments developed by her and her fellow lawyers, maintaining that Prop 100 is invalid under U.S. v. Arizona.

At the December 19 hearing, deputy county attorney Adena Astrowsky argued that there was nothing new in Zavala's motion. (Note: Please see the addendum at the end of this article regarding Astrowsky's comment.)

Commissioner Patricia Ann Starr disagreed.

"I don't think we've argued these before," she said, continuing the matter till early January, to give the state a chance to reply and the defense a stab at a rebuttal.

In the meantime, what about Castaneda-Flores?

Amazingly, in spite of Prop 100, Zavala's client caught a couple of breaks.

ICE agent Gabriel Thompson testified that if Castaneda-Flores was not convicted of a felony, he might be eligible to be released on bond by ICE, considering that he is a DACA applicant.

Also, the case agent, the infamous (in local immigration law circles, at least) Chris Oberly of the Arizona Department of Transportation's Office of the Inspector General was a no-show, though supposedly he had been subpoenaed to appear.

(You may recall Oberly as being accused of dishonesty by this same trio of lawyers in his testimony to a county grand jury in a case I wrote about recently, that of American citizen Briseira Torres.)

Commissioner Starr then shocked the prosecutor by setting bond at $3,600, causing Castaneda-Flores' family to applaud after Starr adjourned.

His common-law wife Brenda Santana, herself a legal resident, was ecstatic at the prospect of having her husband home with her and her three young American citizen children (ages 6, 5 and 1) for Christmas.

"It's been very hard," she said of her spouse's absence. "My kids were diagnosed as having an adjustment disorder [because of the separation]...I didn't even tell them where he was. I just told them he was working."

There's a possibility her husband might go back to jail, depending on what happens at the hearing in January. But Santana's happy her spouse has a respite from confinement in Arpaio's gulags.

"He's never been in jail before," Santana explained. "This is all new to him. He grew up here, went to high-school here. He's not a criminal."

Friday, Zavala's fellow attorney Delia Salvatierra was able to get the ICE hold on Castaneda-Flores lifted. He bonded out, just days before Christmas.

Though she had the same attorneys and faced similar charges, Luz Edith Ruiz-Rascon was not as fortunate as Castaneda-Flores.

Commissioner Starr refused to set bail for her. Ruiz-Rascon's lawyers and supporters took this particularly hard, considering the circumstances of her arrest by the MCSO during an August raid on a local vitamin distribution warehouse.

Allegedly, Ruiz-Rascon was using a false Social Security Number, but the number is not assigned to anyone. Moreover, she's the sole provider for her two U.S. citizen children, one of whom has been diagnosed with leukemia.

Salvatierra's arguments on behalf of her client were almost identical to those of Zavala on behalf of Castaneda-Flores.

For instance, the state is precluded from using any I-9 form Ruiz-Rascon may have signed, as federal law prohibits it from being used to press charges in state courts.

Also, the Supreme Court's 1070 ruling should prevent the county attorney from using the denial of bail as a means of punishing undocumented workers.

And if denying bail in this instance and keeping a mom away from her children on Christmas is not inflicting punishment, I don't know what is.

The motion filed by Salvatierra quotes the U.S. Supreme Court in U.S. v. Salerno, as insisting that, "liberty is the norm, and detention prior to trial...is the carefully limited exception."

The motion continues, stating,

"[T]he Arizona Supreme Court has recognized that the purpose of bail is to secure the attendance of the accused in court at all times when his or her presence may be lawfully required..."

But in Prop 100 cases, judges are not allowed to simply set bail according to the severity of the charge and the likelihood of the defendant returning to court. Prop 100 bars them from doing so, if that person is believed to be in the country illegally.

Perhaps because Ruiz-Rascon, 38, is not DACA-eligible, and because her arresting officer, unlike Oberly, appeared to testify, Commissioner Starr denied her a chance to spend Christmas with her family.

I find it particularly ironic that County Attorney Montgomery persists in this practice of making sure the undocumented are denied bail by prosecuting them, unnecessarily, for a class 4 felony.

This is the same Montgomery who has earned plaudits for endorsing the S.A.N.E. immigration initiative, which I discussed in a recent column.

If Montgomery is sincere in wanting to find a sensible approach to immigration, then this business of charging brown people with the class 4 felony, while letting white college kids off easy, should cease.

Montgomery cannot overturn the law, but his office has prosecutorial discretion. He should use it, if he's interested in being true to his S.A.N.E. stance.

Zavala said she had no idea how many people are currently being held non-bondable in county jails.

"But I know a lot of the attorneys who have these cases," she told me, after her client's hearing. "There are a lot of people in our jails who do not have a criminal history.

"The federal government has said that we only have a limited amount of resources, we should focus on the dangerous criminals. Maricopa County is saying, no, we don't like that, we need to prosecute everybody, we need to prosecute people who are working here without authorization."

The ACLU has challenged Prop 100 in federal court in a case now pending before the Ninth Circuit Court of Appeals. The suit argues that Prop 100 violates the Fourteenth, Fifth and Eighth Amendments to the U.S. Constitution.

Rather than wait, lawyers Salvatierra, Zavala, Sinodis and Ybarra want to cut a pathway to freedom for their clients, pending their clients' respective trials.

Any ruling a Maricopa County Superior Court makes will not set a precedent, but it could suggest to other attorneys a way to spring their clients on bond.

This challenge to the county attorney's practice is tantalizing, and I pray it is successful.

The MCAO is crushing families and criminalizing people who are innocent of any serious wrongdoing.

This is a grave injustice, and a moral crime far greater than using a fake ID to score employment.

ADDENDUM 12/26/2012:

Jerry Cobb, the public information officer for the Maricopa County Attorney's Office got in touch with me today regarding this item.

He said Ms. Astrowsky had been asking the commissioner if there was anything new in Zavala's brief and was not arguing that there was nothing new in the brief.

Indeed, Cobb says Astrowsky had not read Zavala's brief by the time of the hearing.

Not having a transcript of the proceedings before me, I'll concede this may have been the case. My notes indicate Astrowsky's making a comment that the commissioner responded to, but I may have misheard or misunderstood her comment or question. If so, all apologies on this minor point.

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