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Federal Court Strikes Down Illegal Bail Denial

Posted by Matthew Green | Oct 28, 2014 | 0 Comments

Arizona is considered to have some of the harshest anti-immigration laws in the country.  State Ballot 1070 became a lightning rod for controversy, and immediately faced constitutional challenges, striking down many parts of the law.  Now, another anti-immigration law has been struck down by the federal courts, the law which denied bail to illegal immigrants.

In 2006, Arizona voters approved a law which denied bail to unlawful immigrants who were charged with a range of crimes.  These crimes can include felonies such as sexual assault, and murder, but even shoplifting may qualify.  Backers of the law said it prevented people who were accused of crimes, and not legally in the country, from skipping bail.

Last week, the 9th U.S. Circuit Court of Appeals ruled against the law.  In a decision by an 11-member panel, the court determined the law violates the right to due process by effectively imposing punishment before the individual had the case determined at a trial.  The court also said there was no evidence that the law effectively handled the problem it was meant to address.

The class action lawsuit challenging the law was filed in 2008, and included defendants Maricopa County and Sheriff Joe Arpaio.  The case was argued by American Civil Liberties Union (ACLU) lawyer Cecilia Wang.  The Plaintiff's argued the law effectively is contrary to the guarantee that every person is presumed guilty until proven innocent.

The case has not seen the end of it's days in court yet.  Maricopa County Sheriff may ask the court to reconsider, and eventually try and petition the Supreme Court to take up the case.  The law was proposed by former state representative, Russell Pearce, who was also the chief sponsor of SB 1070 and other anti-immigrant laws.  Pearce has said the court's decision overrides the wishes of voters.

Judge Raymond Fisher wrote the majority decision.  According to the Appellate Court, the law denying bail to immigrants charged with certain felony offenses did not address the problem, was not sufficiently limited to certain crimes, and did not take into account individual factors of each suspect to see if the restriction was necessary.  Judge Fisher said that the Constitution protects due process for every person within U.S. borders.

After losing this case, Maricopa County Attorney Bill Montgomery commented on the court's decision. According to Montgomery,” rather than protect public safety and victims of crime, the 9th Circuit has chosen to create a victim class of criminals.

The court stated undocumented immigrants with strong ties to the community, or without a home abroad do not necessarily pose any greater flight risk than other suspects.  According to Judge Jacqueline Nguyen, she believed Arizona's law was drafted on purpose to punish undocumented immigrants. Others have suspected Ex-Senator Russell Pearce proposed his laws, including SB 1070, with a discriminatory intent.

Judge Nguyen, in concurring with the majority, wrote, “intentionally meting out pretrial punishments for charged but unproven crimes, or the nonexistent crime of being ‘in this country illegally,' is without question, a violation of due process principles.”

About the Author

Matthew Green

Managing Partner. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...


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