Hundreds of immigrants in this country illegally who are locked away on state charges will now be entitled to seek bail – at least in Maricopa County if not elsewhere in Arizona.
In a brief order Thursday, the U.S. Supreme Court dissolved the stay issued just this past Friday by Justice Anthony Kennedy which held up a ruling by the 9th U.S. Circuit Court of Appeals declaring unconstitutional a 2006 voter-approved measure which categorically denied bail to some migrants. The justices did not explain the court’s ruling.
But in a separate statement, Justice Clarence Thomas said he went along with the majority not because he believes the 9th U.S. Circuit Court of Appeals got it right when it voided Proposition 100, which amended the Arizona Constitution.
He said the high court has a “strong presumption” for reviewing lower court rulings that declare federal statutes unconstitutional.
“At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment,” Thomas wrote.
But he said that, based on recent court actions, he has “little reason to be optimistic that there are the required four justices willing to give the appellate court decision a full review.” And Thomas said if his colleagues won’t do that, then there’s no point in holding up its implementation.
Maricopa County Attorney Bill Montgomery, who has defended the measure, called the 9th Circuit ruling a “callous rejection of legitimate state interests” and Thursday’s refusal of the Supreme Court to intercede “disappointing indifference.”
Proposition 100 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” that the person is guilty of the offense charged. It was approved by voters by a 3-to-1 margin.
Challenges to the law by the American Civil Liberties Union were rejected by a trial judge and then by a three-judge panel of the appellate court.
But in a 9-2 decision last month, the full appellate court concluded the measure violates the U.S. Constitution. Judge Raymond Fisher, writing for the majority, said the rights against being deprived of liberty without due process extend to “even one whose presence in this country is unlawful.”
The judges also noted there was no evidence presented showing that those in the country illegally are overall less likely to show up for their trials than those who are citizens or legal residents.
Thursday’s order puts that 9th Circuit ruling into effect.
Nothing in the latest development means that all those denied bail solely because of their immigration status will automatically be released.
Instead, it allows each of them to seek a hearing and request release on their own recognizance or after they post some bail. In each case, a judge will have make a decision based on a host of factors unique to that person, including ties to the community, to determine if that person is a flight risk.
Montgomery contends the 9th Circuit got it wrong.
But he conceded that Andrew Thomas, who was the county attorney when the challenge was filed, never presented the statistical evidence about whether those in this country illegally are more likely to flee. So, if nothing else, he wants the case sent back to trial court where he can provide that data.
One open question is how widely Thursday’s decision applies.
It clearly affects Maricopa County, as it was Montgomery who defended the law.
But Deputy Pima County Attorney Amelia Cramer said she does not believe the 9th Circuit ruling is binding on immigrants locked away without possibility of bail.
“The 9th Circuit decision is contrary to and ad odds with the decision of the Arizona Court of Appeals,” she said.
In that 2007 ruling, the state appellate court concluded that Proposition 100 was constitutional. The judges said the lawmakers who referred the issue to the ballot and the voters who approved it “weighed the gravity of the potential flight risks posed by illegal aliens charged with (serious) felonies and found that the risks were sufficient to warrant a denial of bail.”
More to the point, Cramer cited a 2003 ruling by the Arizona Supreme Court which said judges are “are not bound by the 9th Circuit interpretation of what the Constitution requires.”
Despite Thursday’s action, Montgomery said he will ask the U.S. Supreme Court to review and overturn the 9th Circuit ruling, even if people awaiting trial are released on bail in the interim. But, as Thomas pointed out in his comments on Thursday, the chances of that happening are slim.