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Court upholds Arizona law denying bail to suspected illegal immigrants

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Proposition 100

Arizona voters overwhelmingly approved Proposition 100 in 2006. The ballot question said the proposition:

"Adds to the list of non-bailable offenses serious felony offenses prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present change."

WASHINGTON – A federal appeals court Tuesday upheld an Arizona law that prohibits bail for suspects in some criminal cases if the court believes the defendant is in this country illegally.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a lower court, which had thrown out a class-action lawsuit that was brought against the law by two Maricopa County prisoners.

The court said the voter-approved Proposition 100 does not violate defendants’ due process rights and is not overriden by federal immigration law.

“The Arizona Legislature and Arizona voters passed the Proposition 100 laws to further the state’s legitimate and compelling interest in seeing that those accused of serious state-law crimes are brought to trial,” Judge Richard Tallman wrote in the majority opinion.

But in his dissent, Judge Raymond Fisher wrote that there is no support for the law’s premise “that immigration status and flight risk are closely linked.” Instead, he said, the law arose in large part out of “an overriding desire to punish undocumented immigrants for being in the country unlawfully.”

Calls seeking comment on the ruling from Maricopa County Sheriff Joe Arpaio and County Attorney Bill Montgomery, the targets of the suit, were not immediately returned Tuesday.

But attorneys with the American Civil Liberties Union, who represented the prisoners, vowed to appeal.

“I think that the dissenting judge – Judge Fisher – got it right. There is no question that Arizona’s Proposition 100 is unconstitutional,” said Cecillia Wang, the director of the ACLU Immigrants’ Rights Project, who argued the case on behalf of the plaintiffs.

She said the ACLU will ask for a rehearing by the full 9th Circuit.

Arizona voters approved Proposition 100 by vote of 78 percent to 22 percent in 2006. The law expanded the list of offenses for which bail would be denied, to include class 1 through 4 felonies and drunken driving offenses if a person is in the U.S. illegally.

The proposition said those felonies could include capital offenses and such crimes as sexual assault and sex with a minor. But ACLU officials said it could also cover crimes as small as shoplifting.

Bail should be decided on an individualized basis, Wang said. But a person arrested for a minor crime like shoplifting who has deep ties in the community and U.S. family can still be held without bail under Proposition 100, she said.

“It’s grossly excessive. It takes people’s freedom,” Wang said.

The law was challenged by Isaac Castro-Armenta and Angel Lopez-Valenzuela, after they were arrested in Maricopa County and denied bail. Castro-Armenta was charged with aggravated assault with a deadly weapon, kidnapping and assisting a criminal syndicate, while Lopez-Valenzuela was charged with dangerous drug transportation.

They filed a class-action suit in U.S. District Court, claiming violations of due process and other rights. But the district judge granted summary judgment for the state, and the appeals panel upheld that decision Tuesday.

But Fisher said there are better ways to keep suspects from skipping bail, “such as bond requirements, monitoring and reporting requirements.”

He pointed to comments about the bill by Russell Pearce, then a member of the Arizona House of Representatives, who said criminal suspects here illegally “ought to be detained, debriefed and deported.” That shows Proposition 100 is “unconstitutionally punitive,” Fisher wrote.

Alessandria Soler, executive director of the Arizona ACLU, said Proposition 100 denies people due process rights and wastes taxpayer dollars. It’s an important issue to the ACLU, she said.

“We’re going to continue fighting,” Soler said. “We’re hoping for the best.”