Court rules Arizona cannot deny bail based on nationality

Russell Pearce (Capitol Media Services file photo by Howard Fischer)

Russell Pearce (Capitol Media Services file photo by Howard Fischer)

PHOENIX -- Arizona cannot deny bail to certain people charged with crimes simply because they are here illegally, the U.S. Supreme Court ruled Monday.

In a brief order, the majority of the justices rejected a last-minute bid by Maricopa County Attorney Bill Montgomery to give him a chance to salvage the 2006 voter-approved measure. The justices gave no reason for their decision.

But Monday's action was far from unanimous, with three of the justices dissenting.

"The Court's refusal to hear this case shows insufficient respect to the State of Arizona, its voters, and its Constitution, wrote Justice Clarence Thomas for himself and Antonin Scalia. "And it suggests to the lower courts that they have free rein to strike down state laws on the basis of dubious constitutional analysis.'

Justice Samuel Alito also dissented.

Nothing in Monday's action precludes a judge hearing a criminal case from considering the fact a person is in the United States illegally as one factor in determining whether to allow that person to be released on bail.

But it essentially forces prosecutors to prove their illegal presence makes them a flight risk. Montgomery said that makes no sense.

"It's still somewhat mind-boggling that if someone's here without lawful authority a court with a straight face could say, 'Now I'm going to put you on release (and) you have to abide by all laws' when at the outset everybody knows they're not abiding by laws with respect to their presence in the country and in the state,' he said.

But Cecillia Wang of the American Civil Liberties Union said the courts got it right, recognizing that all people are entitled to a bail hearing and a presumption of innocence.

"Laws that are driven by fear-mongering rather than facts are bad policy and violate everyone's civil liberties,' she said.

Proposition 100, approved by votes on a 3-1 ratio in 2006, amended the Arizona Constitution to make bail unavailable to those charged with "serious felony offenses' if they are in this country illegally and if "the proof is evident or the presumption great' the person is guilty of the offense charged.

It was crafted by former state Senate President Russell Pearce -- at the time a state representative -- who argued that anyone who has crossed the border illegally probably has few ties to this country. That, he said, automatically makes them at greater risk of fleeing before trial.

Last year, however, a majority of the 9th U.S. Circuit Court of Appeals ruled the law unconstitutional.

Writing for the majority of the 11-member court, Judge Raymond Fisher said there is a presumptive right of those arrested to be released on bail. He said the fact someone may have entered the country illegally is an entirely separate issue and irrelevant to the question.

"The Due Process Clauses of the Fifth and Fourteenth Amendments protect every person within the nation's borders from deprivation of life, liberty or property without due process of law,' he wrote. "Even one whose presence in this country is unlawful is entitled to that constitutional protection.

Fisher said regardless of someone's status, there are "profound effects' of pretrial detention, endangering someone's job, interrupting income and impairing family relationships. He also said it can affect someone's ability to assist an attorney in preparing a defense.

Montgomery, in seeking high court intervention, effectively was asking for a "do-over' in the legal fight.

He conceded that a prior county attorney did not present any actual evidence showing that undocumented individuals were less likely to show up for court dates than citizens or legal residents.

It was that lack of facts, coupled with disparate treatment of those without documents, that caused the federal appeals court to declare Proposition 100 illegal and unenforceable anywhere in Arizona.

But Montgomery argued that the challengers to the law effectively admitted undocumented defendants had a higher incidence of nonappearance for trials. He said that's why his office thought there was no need to present any statistical evidence.

Fisher, however, suggested there is evidence to the contrary.

He pointed out there were undocumented individuals who had been arrested before Proposition 100 was approved and who had been released without bail or after posting bond. He said they still showed up in court after the measure was enacted -- only to then be "needlessly remanded into state custody' after the ballot measure took effect.

Fisher also cited the breadth of the measure.

He pointed out that Proposition 100 applies not just to those accused of serious offenses but "also relatively minor ones,' like altering a lottery ticket to defraud, unlawful copying of a sound recording or theft of property worth between $3,000 and $4,000.

Monday's ruling is the latest setback for those who want restrictions on those not in the country legally. It follows various federal court rulings voiding the more comprehensive SB 1070 enacted by the Legislature four years later.

Several sections of that low remain in place, however, including one that requires police to check the immigration status of those they have stopped if there is reason to believe they are not authorized to be in the country.

The U.S. Supreme Court refused to declare that requirement as preempted by federal law. But foes continue to challenge it on other grounds.

Montgomery was frustrated by Monday's inaction by the high court.

"Arizona has been living in an Alice in Wonderland World where we're trying to reconcile the impact to our communities from the criminal consequences with all the other policy issues related to immigration issues on the whole,' he said. "And we can't even get a fair hearing on whether or not the state has a legitimate interest in the specific criminal context.'

That view was shared by Thomas who noted it takes at least four of the nine justices saying they want to review a lower court ruling for the Supreme Court to take it up.

"It is disheartening that there are not four members of this court who would even review the decision,' Thomas wrote. "States deserve our careful consideration when lower courts invalidate their constitutional provisions.'

And Thomas predicted that Monday's action "will only embolden the lower courts to reject state laws on questionable constitutional grounds.'

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