By Glynn Cosker
Editor, In Homeland Security
A federal appeals court ruled Wednesday that denying bail to illegal immigrants charged with a crime in Arizona was unconstitutional.
The 9th U.S. Circuit Court of Appeals rendered a 9-2 decision striking down Arizona’s voter-approved ‘Proposition 100’ statute that determined that an illegal immigrant charged with a serious crime would not be granted bail if a court decided the defendant was most likely guilty.
The main argument for denying bail was to prevent illegal immigrants from fleeing the U.S. while awaiting trial. However, some jurisdictions in Arizona were applying the law to illegal immigrants charged with non-serious crimes such as piracy of music or shoplifting in a grocery store.
Writing for the majority, Judge Raymond Fisher stated “there is no evidence that undocumented status correlates closely with unmanageable flight risk.”
Judge Jacqueline H. Nguyen wrote in her concurrence that “intentionally meting out pretrial punishment for charged but unproven crimes, or the nonexistent crime of being ‘in this country illegally,’ is without question, a violation of due process principles.”
The decision was obviously a victory for immigration rights advocates who uphold that denying bail to anybody, regardless of their immigration status, is illegal and in violation of the Fourteenth Amendment to the U.S. Constitution which ensures due process of law and equal protection.
Immigrant rights group Puente was one of many grassroots organizations celebrating the court’s decision.
“For the last eight years, undocumented people in Arizona have been unjustly denied bail. We applaud the 9th Circuit’s decision and demand full compliance immediately, beginning with the release of all those currently detained as a result of Proposition 100,” said Puente in an official statement.
In dissent of his court’s ruling, Judge Richard C. Tallman stated that striking down the statute dismissed the “policy judgment of the Arizona legislature and nearly 80 percent of Arizona’s voting electorate, telling the State it really doesn’t have an illegal immigration problem adversely affecting its criminal justice system.” Judge Tallman further stated that “only four states — Arizona among them — provide serious felony offenders with such a quick and convenient route into Mexico.”
Maricopa County Attorney Bill Montgomery defended Proposition 100 before the court and issued a statement shortly after the statute was struck down.
“Rather than protect public safety and victims of crime, the 9th Circuit has chosen to create a victim class of criminals,” said Montgomery. “We are currently reviewing and determining our next steps in this matter.”
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