Feathered Bastard

Bill Montgomery's Ghost of Christmas Present: Injustice

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.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons