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U.S. Supreme Court allows AZ to ban bail for illegal immigrants, for now

Immigrants in this country illegally awaiting trial on criminal charges won’t be getting out of jail, at least not yet.

In a brief order today, U.S. Supreme Court Justice Anthony Kennedy blocked implementation of a ruling by the 9th U.S. Circuit Court of Appeals voiding a 2006 Arizona law which effectively denies many of those migrants even the opportunity to ask for bail. Kennedy gave no reason for his order.

Friday’s order is at least an interim victory for Maricopa County Attorney Bill Montgomery, who has been defending the law.

He contends there are legitimate reasons to conclude that those accused of certain serious crimes who are in the country illegally are less likely to show up for trial. And Montgomery said the 9th Circuit got it wrong in concluding such a blanket rule is unconstitutional.

But the stay may be brief. Kennedy gave the American Civil Liberties Union, which is challenging the law, until the end of the day Monday to convince him and his colleagues that the high court should stay out of the fight.

Attorney Cecillia Wang said she will tell the Supreme Court there is no basis to stay the 9th Circuit ruling because this is not a case worthy for the justices to review.

She said the 9th Circuit decision does not conflict with rulings from other appellate circuits. And she said the appellate court here properly applied existing legal precedents.

“Prop 100 is unconstitutional and the Arizona courts should start conducting individual hearings,” she said.

Hanging in the balance is the enforceability of the 2006 voter-approved measure. It makes 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” that 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.

But in a ruling last month, the majority of the appellate justices concluded there is a constitutional presumptive right of those arrested to be released on bail. They said the fact someone may have entered the country illegally is an entirely separate – and irrelevant – issue.

Montgomery said he wants the high court to rule that the appellate judges got it wrong.

He said they missed a key point: Simply being in this country illegally did not mean bail denial. Montgomery said that can occur only after prosecutors prove to a judge there is that evidence proof or great presumption that the person is, in fact guilty.

“There is a right to a hearing,” he said, meeting the constitutional concerns.

But the question of whether there can special rules for those not in the country legally is only part of the problem Montgomery faces.

The appellate judges said Maricopa County never offered any statistical evidence during the trial showing a higher propensity of those here illegally to flee. Montgomery conceded the point, saying that decision was made by Andrew Thomas when he was running the office.

Montgomery said, though, that evidence exists. And if nothing else, he wants the Supreme Court to order that he be given a chance to present it.

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