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Arizona law denying bail for some immigrants wins appeal

Judges on the U.S. 9th Circuit Court of Appeals uphold Proposition 100, a 2006 ballot measure that created a constitutional amendment to create bail exceptions for immigrants who are in the country without authorization.

June 18, 2013|By Maura Dolan, Los Angeles Times

SAN FRANCISCO — An Arizona law that denies immigrants who are in the country without legal permission the right to post bail for a wide array of felonies won approval Tuesday from a divided federal appeals court.

The U.S. 9th Circuit Court of Appeals decided 2 to 1 to uphold Arizona's Proposition 100, a 2006 ballot measure that voters approved 78% to 22% as a state constitutional amendment to create bail exceptions for immigrants who lack authorization.

Two immigrants who were denied bail under the law challenged it in a class-action lawsuit. One was arrested for a drug offense, the other for assault, kidnapping and aiding a criminal syndicate.

They argued that the state law violated the U.S. Constitution's right to due process and other protections and usurped the federal government's right to decide immigration law.

The law covers most felonies, including possession of certain drugs, possession of marijuana for sale, felony driving under the influence, serial shoplifting and identity theft.

The American Civil Liberties Union, which represents the immigrants, contended that people with strong ties to the community, including children, have been denied bail even though they were not likely to flee and were facing charges that could result in no jail time.

In upholding a lower-court ruling in favor of the state, the 9th Circuit majority said that Proposition 100 was aimed at preventing arrested suspects from fleeing before trial, and that it was in line with other no-bail provisions states enact.

"Proposition 100's legitimate — indeed its compelling — purpose is ensuring that defendants remain in the United States to stand trial for alleged felony violations of Arizona's criminal laws," Judge Richard C. Tallman, an appointee of President Clinton, wrote for the majority.

Judge Raymond C. Fisher, also a Clinton appointee, dissented, arguing that Arizona was "plainly using the denial of bail as a method to punish 'illegal' immigrants."

"Proposition 100 categorically denies bail and thus requires pretrial detention for every undocumented immigrant charged with any of a broad range of felonies, regardless of the seriousness of the offense or the individual circumstances of the defendant, including the defendant's strong ties to and deep roots in the community," Fisher wrote.

Cecillia D. Wang, director of the ACLU Immigrants' Rights Project, said the ruling would be appealed to a larger 9th Circuit panel.

"When Prop. 100 went into effect, there were a lot of people alleged to be undocumented immigrants who had bail set and who were showing up for court and who ended up being thrown in jail pending trial," Wang said.

But Maricopa County Atty. Bill Montgomery, the chief prosecutor, said that before the law's passage, many undocumented immigrants had failed to show up for court.

"It has been my personal experience that if someone commits a serious offense, including felony DUIs, and if they don't have lawful status, they are less likely to appear," he said.

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