U.S. Supreme Court Won't Save Arizona Law Denying Bail for Undocumented

The U.S. Supreme Court decided today that it won't review a decision striking down Arizona's voter-approved, 2006 law denying bail for certain undocumented-immigrant crime suspects.

Passed by a bipartisan wave of voters riding an anti-immigrant sentiment in the mid-2000s, the law was also a favorite of Maricopa County conservatives including former County Attorney Andrew Thomas, Sheriff Joe Arpaio, recalled lawmaker Russell Pearce and Bill Montgomery, the current county attorney.

Two undocumented immigrants who were denied bail challenged the law in 2008 with the help of the American Civil Liberties Union.

A trial court and three-judge panel of the U.S. Ninth Circuit Court of Appeals upheld the law in 2013.

But following the judicial dismembering of several of Arizona's infamous anti-illegal-immigrant ideas, including SB 1070 and a law requiring voters to show identification when voting, the Ninth Circuit decided in January of 2014 to re-examine, en banc, the no-bail law. Later that year, as we'd predicted, the appellate court ruled that the law was unconstitutional. Montgomery filed an emergency motion to stay the decision, but the move was rejected by the Supreme Court. Justice Clarence Thomas noted at the time that it was unlikely the case would find the minimum of four justices required to order a review of the law — and he was right about that.

"The Court’s refusal to hear this case shows insufficientrespect to the State of Arizona, its voters, and its Constitution." — Justice Clarence Thomas

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Justices Samuel Alito, Antonin Scalia and Thomas dissented from today's decision denying the state's petition for a writ of certiorari in the case. Thomas, in his written dissent, lamented the failure to review a voter-passed law.

"The Court’s refusal to hear this case shows insufficient respect to the State of Arizona, its voters, and its Constitution," he wrote. "And it suggests to the lower courts that they have free rein to strike down state laws on the basis of dubious constitutional analysis... It is disheartening that there are not four Members of this Court who would even review the decision below. As I previously explained, States deserve our careful consideration when lower courts invalidate their constitutional provisions."

According to Thomas, the decision to strike down a voter-approved law without so much as a review doesn't bode well for such laws in the future: "Our indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds. This Court once emphasized the need for judicial restraint when asked to review the constitutionality of state laws."

It's a fair point, and it's easy to imagine outrage from the left if the same thing had happened to voter-approved marijuana decriminalization or same-sex marriage laws. The difference, though, is that while some state laws — like those legalizing same-sex marriage and marijuana — expand the freedoms of Americans, Arizona's laws targeting illegal immigrants unfairly hassled and restricted the freedoms of legal immigrants and U.S. citizens, particularly Hispanics.

The Ninth Circuit's 2-1 decision in 2013 upholding the law, which was referred to voters by the Republican-dominated State Legislature, clearly missed the mark. 

"Having reviewed all of the evidence, we are convinced," the two affirming Ninth Circuit judges wrote in 2013,"as was the district court, that the record as a whole does not show that Proposition 100 was motivated by an improper punitive purpose."

The panel followed up that statement, ironically, with evidence of bigotry and harsh rhetoric toward undocumented people by Pearce, who was recalled from office in 2011.

"It is undisputed that during committee hearings on the Proposition 100 laws, several legislators made statements about controlling illegal immigration," the Ninth Circuit judges wrote in 2013. "For example, then-Representative Russell Pearce, the sponsor of the Proposition 100 bill, speaking in a March 2005 Arizona Senate Judiciary Committee hearing, stated: “[B]ad enough you’re illegal, but you commit a serious crime, you ought not to be bondable unless you’re released after prosecution, after you do your time to ICE and then to be deported. In fact, all illegal aliens in this country ought to be detained, debriefed and deported."

The two affirming judges seem to have fallen for Pearce's argument that the bill was really designed to bolster public safety by ensuring suspects showed up for their court dates. On the other hand, Raymond Fisher, the dissenting judge in that 2013 opinion, nailed it, writing that:

"Without any evidence that unauthorized immigrants released on bail have been or are less likely to appear for trial compared to arrestees who are lawful residents, the majority accepts Arizona’s unsupported assertion that all unauthorized immigrants necessarily pose an unmanageable flight risk,such that a blanket denial of bail is not an 'excessive' tool to combat flight risk. As revealed by Proposition 100’s legislative history and scope, however, Arizona is plainly using the denial of bail as a method to punish 'illegal' immigrants, rather than simply as a tool to help manage arrestees’ flight risk."

(Last year, Pearce was booted from a leadership position in the state Republican Party after stating on a radio show that he supported sterilizing Medicaid recipients.)

In 2014, the larger panel of Ninth Circuit judges expanded Fisher's line of reasoning, quoting Andrew Thomas in their opinion and noting the disbarred attorney and disgraced politician wasn't a "credible source" for information about the problems of illegal immigration.

Restrictions on bail should serve an "acute interest," the appeals court ruled last year, but Proposition 100 was "not carefully limited to serve that interest."

The U.S. Supreme Court's decision today, despite the concerns about states' rights, puts an end to what many saw as another attempt by Arizona to codify bigotry.

UPDATE: County Attorney Bill Montgomery releases a written statement. Here's a partial cut-and-paste that captures the gist of it:

“By declining to hear a challenge to the Ninth Circuit’s ruling, the high court is effectively permitting a federal appeals court to veto a law enacted to address specific concerns in Arizona,” said Maricopa County Bill Montgomery. “First, there is a concern that defendants subject to deportation by the federal government due to their immigration status may be deported when released from state custody on bail and not be present for further proceedings. Second, is my own firsthand experience in finding that defendants released on bail for a serious offense are far less likely to show up for court.”

Montgomery also noted key points raised in the dissenting opinion authored by Justice Thomas and joined by Justice Scalia. Justice Alito also dissented from the Court’s denial of review. “Among the troubling areas of concern raised in the dissenting opinion is the erosion of respect for actions by State legislatures with the related increased willingness for courts to substitute their own policy judgments. The Congress should also note that it is likely time to once again require the United States Supreme Court to review federal court decisions striking down state constitutional provisions,” Montgomery said.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.