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Federal Appeals Court Strikes Arizona Law Locking Undocumented Immigrants In Jail Without Bail

A 2006 ballot initiative billed as a "border security" measure indiscriminately denied bail to all undocumented immigrants charged with particular crimes.

The post Federal Appeals Court Strikes Arizona Law Locking Undocumented Immigrants In Jail Without Bail appeared first on ThinkProgress.

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CREDIT: Shutterstock

In 2006, Arizona voters passed a ballot initiative to hold all undocumented immigrants charged with certain crimes in jail until their trials, with no opportunity for bail. While constitutional law suggests that individuals should only be deprived of their liberty in advance of their conviction in the most narrow of circumstances, legislators selling Proposition 100 to voters billed it as a strong “border security” measure, with state Senator Russell Pearce warning of “[l]arge, well-organized gangs of illegal aliens,” and the need to keep such “dangerous thugs in jail rather than releasing them onto the streets.”

On Wednesday, a federal appeals court panel struck down that ballot initiative, holding that the “unusual, sweeping pretrial detention statute, directed solely at undocumented immigrants” unconstitutionally infringed on the freedom of these immigrants, without regard for whether they were actually a flight risk, and before knowing whether they had actually done anything wrong. The ruling marks another loss for Arizona, whose anti-immigrant SB 1070 law was also gutted by the Supreme Court. The lawsuit challenging Proposition 100 was filed against Maricopa County and its officials, where the infamous Sheriff Joe Arpaio continues to flout the law in his crusade against immigrants.

“Regardless of whether an arrestee is a citizen, a lawful resident or an undocumented immigrant, the costs to the arrestee of pretrial detention are profound,” Judge Raymond Fisher wrote for U.S. Court of Appeals for the Ninth Circuit en banc panel, citing Supreme Court rulings that warned, “Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships” and affect the “defendant’s ability to assist in preparation of his defense.” Fisher also cited studies that have found defendants released while they prepare for trial are much more likely to have positive outcomes than those stuck behind bars. Norma Reimer of the National Association for Criminal Defense Lawyers recently described jail as “ransom” to extract guilty pleas.

Judges typically deny bail to defendants when they believe that they are a “flight risk” and may not return to court for their trial. In most cases, judges assess each case based on whether a defendant has ties to the community where they live, has shown propensity to flee or act dangerously in the past, and, perversely, whether that defendant can afford to pay a bond that the court will hold until the defendant shows up for court.

But Arizona argued that undocumented immigrants are in a unique category, because they are all flight risks, with another country to return to and no ties to the community. They cited no evidence to support this contention. In fact, the lower court judge who sided with the state cited unsubstantiated statements on the cable news show Lou Dobbs Tonight of then-Maricopa County Attorney Andrew Thomas, who has since been disbarred in disgrace for “using his office to destroy political enemies, filing malicious and unfounded criminal charges, committing perjury and engaging in a host of other crimes.” Thomas claimed at the time that Arizona had a “tremendous problem with illegal immigrants coming into the state, committing serious crimes, and then absconding, and not facing trial for their crimes, either because they jump bail after they are out, or because, when they are let out on bail, the federal government deports them.”

Contrary to the defendants’ arguments, Fisher pointed out that many undocumented immigrants are “fairly settled” and do have strong ties to the community whether it be through years of living in the states, or family, and by contrast cannot return to their home country because of fear or other reasons. What’s more, they have the same due process rights as all others within U.S. borders, and “the record contains no findings, studies, statistics or other evidence (whether or not part of the legislative record) showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk than lawful residents.”

He also noted that the statements of the ballot initiative’s proponents misled voters by not describing what sorts of “serious crimes” were encompassed by the law, and that the law holds people in jail for “relatively minor” offenses like unlawful copying of a sound recording and tampering with a computer with the intent to defraud.

“The Supreme Court has made clear that ‘[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ … [T]he Proposition 100 laws do not address an established ‘particularly acute problem,’ are not limited to ‘a specific category of extremely serious offenses,’ and do not afford the individualized determination of flight risk or dangerousness that [the U.S. Supreme Court] deemed essential,” Fisher wrote.

One judge, Jacqueline Nguyen, wrote a separate opinion to argue that evidence suggests the legislators actually had the improper purpose of seeking to punish immigrants for their undocumented status, citing Pearce’s statements about the law in particular. Three others dissented.

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