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US Supreme Court rules Arizona can’t deny bail to illegal immigrants charged with serious crimes

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

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 today’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 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.

Today’s ruling was 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.

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 effectively was asking for a “do-over” in the legal fight.

He conceded during the legal efforts 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.

Fischer 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.

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.”

The 9th Circuit in reviewing the measure, also was not unanimous in its ruling that it is unconstitutional – and its conclusion there was no evidence that those in the country illegally are more likely not to show up for trial than lawful residents.

In a dissent, Judge Richard Tallman said that ignores the statements made during the 2006 campaign by Thomas, then the Maricopa County attorney, that “far too many illegal immigrants accused of serious crimes have jumped bail and slipped across the border in order to avoid justice in an Arizona courtroom.”

But Fisher called those claims unsubstantiated and said that Thomas “is not a credible source.”

“He was disbarred in 2012 for using his office to destroy political enemies, filing malicious and unfounded criminal charges, committing perjury and engaging in a host of other crimes,” Fisher wrote of Thomas.

And appellate Judge Jacqueline Nguyen, in a separate opinion concurring with the majority, went even further. She said it appears lawmakers put the issue on the ballot – and voters approved it – not to ensure that people remained for trial but simply to punish them for being in this country illegally in the first place.


  1. Justice Scalia is wrong. Declaring this law unconstitutional merely sends a message to Sheriff Joe Arpaio and former County Attorney, Andrew Thomas (now disbarred), that their unconstitutional antics will not be tolerated. Arpaio is a showboat who engages in grandstanding publicity stunts to get himself on the evening news, but who allowed 300+ child abuse cases to expire on statute of limitations grounds. Thomas is a megalomaniac who, after obtaining an adverse ruling from a judge, had the judge indicted for bribery, without a shred of evidence that the judge had engaged in any such conduct.

  2. Howie, as a legal point of clarification regarding a common mistake, the Supreme Court ruling came in the form of a petition for a writ of certiorari. A cert petition is a request that the Court exercise its discretion to review the decision by a court of appeals or a state supreme court. The Court has discretion to pick and choose which petitions to grant, for any reason whatsoever. Court Rule 10 mentions some of the discretionary factors that may weigh on its consideration, such as whether the issue has been addressed in conflicting manner by the courts of appeal. Not counting prisoner petitions, only about 4% of cert petitions are granted each year. It’s not uncommon for the Court to deny cert petitions filed by parties whose legal position later prevails years later. Technically, as the Court has said many times, denial of a petition for cert does not constitute a ruling against the petitioner, for the respondent, or indeed any substantive ruling at all. Denial of cert is a “setback” for the unsuccessful petitioner in the sense that it leaves in place the ruling of the lower court, but you and all others should draw no conclusions about how the Court might decide the legal issue someday. Cheers.

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