- The Washington Times - Wednesday, October 15, 2014

Illegal immigrants have the same constitutional right to bail that U.S. citizens do, a federal appeals court ruled Wednesday in a decision striking down an Arizona statute designed to make sure criminals without any community ties didn’t flee in the face of a looming trial.

The 9th U.S. Circuit Court of Appeals, in a 9-2 decision, ruled that Arizona’s voters, who passed the statute in a 2006 referendum, were actually trying to punish illegal immigrants rather than trying to reduce the risk of flight by those charged with serious felonies. The judges said bail isn’t allowed to be used as punishment, since the accused is innocent until proven guilty.

“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,” Judge Jacqueline H. Nguyen wrote in a concurring opinion.

The case marks the latest time that the 9th Circuit, which covers most of the western U.S., has struck down one of Arizona’s get-tough immigration laws.

An earlier three-judge panel of the same court had upheld Arizona’s law, but Wednesday’s ruling supersedes that.

Immigrant rights advocates said the ruling shows that constitutional rights apply to everyone, regardless of their status.

“The court has restored to Arizona the fundamental constitutional principle that each person is entitled to an individual hearing in court before they are locked up while awaiting trial,” said Cecilia Wang, director of the American Civil Liberties Union’s immigrant rights project, who led the challenge to the law.

Known as Proposition 100, the statute said illegal immigrants charged with a serious felony, as determined by the legislature, would not be eligible for bail if a court found there was a great likelihood the person committed the crime.

The majority judges said they were swayed to find the statute unconstitutional in large part because it was pushed by then-state Rep. Russell Pearce, who helped craft a number of the state’s immigration laws cracking down on those in the country illegally. Mr. Pearce at the time said Proposition 100 would help achieve his vision of deporting illegal immigrants.

The two judges who dissented from Wednesday’s ruling said the other judges were overturning the will of 78 percent of voters who approved the statute with an acute understanding of problems in the state.

“We cannot judge this case with blinders on. Arizona faces unique challenges as one of four states bordering Mexico,” Judge Richard C. Tallman wrote in his dissent. “Only four states — Arizona among them — provide serious felony offenders with such a quick and convenient route into Mexico. Thus, while Proposition 100 may be relatively unique among the fifty states, that’s nothing more than a reflection of Arizona’s unique flight risk problem and geography.”

Judge Tallman also said the majority was reading too much into the motives of the voters when it said they were trying to punish illegal immigrants, rather than to ensure law and order by making sure potential criminals showed for trial.

He said both a state court and a federal district court conducted their own reviews and concluded the voters weren’t intending to be punitive.

Those detained can also challenge the court’s initial finding that they likely committed the crime with which they are charged.

Maricopa County Attorney Bill Montgomery, who defended the statute before the court, said the judges were turning criminals into victims in the case.

“It is a fact that persons committing crimes in Maricopa County who are present without lawful authority have failed to appear when admission to bail was a regular practice,” he said in a statement.

He said local officials were pondering whether to appeal to the Supreme Court.

Jack MacIntyre, deputy chief of the Maricopa County Sheriff’s Office, said officials believed the statute was narrowly tailored to go after the most serious of criminals. He chided the famously liberal appeals court for reversing both a federal trial court, the earlier three-judge panel, and the decisions of voters.

“It’s very surprising to me — well, maybe not that surprising — that the 9th Circuit en banc panel decided to ignore the separation of powers and ignore what the legislature and the voters of Arizona think,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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