Supreme Court urged not to intervene on bail for immigrant felony suspects

The Arizona Constitution since 2006 has prohibited bail for felony suspects who are in this country illegally. A federal court last month overturned the law, but Supreme Court Justice Anthony Kennedy delayed it temporarily at the request of Maricopa County officials. (Graphic by Cronkite News)

WASHINGTON – Opponents of an Arizona law that denies bail to felony suspects who are in this country illegally urged the Supreme Court on Monday to let stand a lower court ruling that overturns the ban.

The American Civil Liberties Union Foundation and the ACLU of Arizona were responding to Supreme Court Justice Anthony Kennedy’s decision Friday to stay the 9th U.S. Circuit Court of Appeals’ decision while Maricopa County officials prepared a formal appeal to the high court.

The ACLU argued that Maricopa County Attorney Bill Montgomery had failed to show that the state would suffer irreparable harm if the appellate court’s ruling was allowed to take effect.

But staying the circuit court’s decision now “will clearly keep people in jail who have been accused of … things like shoplifting and bad checks,” ACLU senior counsel Dan Pochoda said Monday.

In a statement Friday, however, Montgomery said the law was overwhelmingly approved by voters and has been in place for eight years. Overturning it now would “cause irreparable harm by releasing potentially dangerous criminals who pose a flight risk,” the statement said.

He also argued in his petition to Kennedy that state courts would be overwhelmed by requests for bail hearings if the 9th Circuit decision stands.

Arizona voters in 2006 approved Proposition 100, which amended the state constitution to make a “serious felony offense” committed by a person in this country illegally a “non-bailable offense.” The measure won with 78 percent of the vote.

State lawmakers defined “serious felony offense” as a class 1 through 4 felony – which the ACLU argued is “an exceedingly broad range of offenses, including not only serious offenses but also relatively minor ones.”

Proposition 100 requires that judges deny bail to anyone charged with such a felony if “proof is evident” that the suspect committed the crime and there is “probable cause that the person entered or remained in the United States illegally.”

A full 9th Circuit Court ruled 9-2 on Oct. 15 that the law was unconstitutional on its face, calling it a “scatter-shot attempt to rein in all immigrants.”

Montgomery asked the court to stay its ruling and send the case back to district court, which could consider more evidence on the flight risk posed by suspects in this country illegally. But the court rejected that request on Oct. 31, prompting the appeal to the Supreme Court.

Montgomery said the high court needed to step in and settle the disagreement between the 9th Circuit and state courts that had previously upheld the law.

Currently, he said, state officials are caught between “a state constitutional provision upheld by their state courts to deny bail to those charged with serious felonies who are unlawfully present in the United States, and barred from complying with the no-bail requirement by a federal court decision involving that same provision.”

Kennedy issued his temporary stay Friday, one day before the 9th Circuit’s ruling was to take effect.

The ACLU said Monday that there is no harm in letting the ruling take effect. Courts in Arizona would merely weigh each defendant’s eligibility for bail based on “individualized determinations as to whether an accused individual poses an unmanageable flight risk, just as they did before,” the response said.

“There’s really no harm to Arizona,” Pochoda said.

That needs to be balanced against the potential harm to defendants who are wrongly denied bail, the ACLU argued.

“Weighing heavily on the other side of the scale is the wholesale denial of due process for an unpopular political minority that the Arizona legislature and electorate have once again decided to single out without justification,” it said.

Court officials could not predict Monday when Kennedy might issue a decision. Court officials in Arizona, meanwhile, have already scheduled bail hearings beginning Nov. 17 as a result of the circuit court decision.