Appeals Court To Review Arizona Immigrant Bail Restrictions

By Jude Joffe-Block
March 18, 2014

PHOENIX – A federal appeals court will hear oral arguments Tuesday over the constitutionality of an Arizona law that denies bail to some immigrants who are in the country illegally. This will be the second time the court reviews this case.

Maricopa County Attorney Bill Montgomery says back when he was a courtroom prosecutor, he noticed something about some defendants who weren't U.S. citizens.

"They wouldn't be back for their next court date," Montgomery said.

In other words, they jumped bail.

"And this also includes defendants from Canada," he said. "So it is not solely just those from Central or South America or Mexico."

In 2006, Arizona voters approved Proposition 100. 

It amended Arizona's constitution so immigrants in the country without legal status can't get bail if they are arrested for certain crimes. That means they must wait in jail – often for months – until their trials. 

It applies to a range cases, such as forgery and shoplifting up to more serious crimes. 

The American Civil Liberties Union is suing Maricopa County, Montgomery and Sheriff Joe Arpaio over the county's implementation of the law. 

Cecillia Wang is one of the lead attorneys in the lawsuit.

"It simply isn't true that undocumented immigrants pose such a flight risk that every single one of them should be locked up without a hearing," Wang said.

Wang said before Proposition 100, judges could decide which defendants were flight risks and which weren't.

"Proposition 100 simply took away the state's authority to set bail in individual cases," Wang said.

Wang said a consequence of the law is that it makes it harder for defendants to fight their cases since they are jailed, and means some will agree to take plea deals just so they can get out of custody.

"It has resulted in real miscarriages of justice as people are forced simply to give up their cases, give up good arguments they have that would lead to their acquittal, rather than face continued jail time,"  she said.

Wang's team is arguing the law is unconstitutional because it violates due process, right to counsel, and protections against excessive bail. They are also arguing the law preempts federal immigration law. But last year, a three-judge panel from the Ninth Circuit Court of Appeals disagreed and upheld it. 

Afterward, however, an 11-judge panel agreed to review the law again.

When Arizona passed this law it was unique in the country, but in recent years Missouri and Alabama passed similar provisions.