Ari­zona loses ap­peal on im­mi­gra­tion law

The Supreme Court ac­tion ends the state’s ef­fort to deny bail to cer­tain im­mi­grants.

Los Angeles Times - - THE NATION - By David G. Sav­age david.sav­age@la­ Twit­ter: @DavidGSav­age Times staff writer Michael Muskal in Los An­ge­les con­trib­uted to this re­port.

WASH­ING­TON — The Supreme Court, over three dis­sents, on Mon­day re­jected Ari­zona’s ap­peal over a law that would have de­nied bail to im­mi­grants here il­le­gally and ar­rested for a se­ri­ous felony.

The mea­sure, adopted in 2006 by the state’s vot­ers, said judges may not set bail for peo­ple who have “en­tered or re­mained in the United States il­le­gally” and were ar­rested for “se­ri­ous felony of­fenses.”

Last year, how­ever, the U.S. 9th Cir­cuit Court of Ap­peals struck down the law and said that the Con­sti­tu­tion’s pro­tec­tion of lib­erty ap­plied to all peo­ple in the United States and that those un­der ar­rest had a right to an in­di­vid­ual hear­ing on whether they may be re­leased be­fore a trial.

Lawyers for Mari­copa County asked the jus­tices to re­verse that de­ci­sion, ar­gu­ing that im­mi­grants who were in the coun­try il­le­gally were not likely to show up for a trial if they were set free.

Af­ter con­sid­er­ing the case for sev­eral weeks, the court said it would not hear the ap­peal.

The Amer­i­can Civil Lib­er­ties Union, which fought Propo­si­tion 100, praised the court’s ac­tion.

“Ari­zona of­fi­cials who tried to strip peo­ple of a bail hear­ing and the pre­sump­tion of in­no­cence have reached the end of the road,” said Ce­cil­lia Wang, direc­tor of the ACLU’s Im­mi­grants’ Rights Project. “Laws that are driven by fear-mon­ger­ing rather than facts are bad pol­icy and vi­o­late ev­ery­one’s civil lib­er­ties.”

Ac­cord­ing to Wang, the law was in ef­fect for about seven years un­til it was over­turned by the fed­eral court and prob­a­bly af­fected thou­sands, per­haps tens of thou­sands, of peo­ple.

“In a lot of th­ese cases, a per­son would be ar­rested un­der Ari­zona’s smug­gling laws or they were peo­ple work­ing with a false So­cial Se­cu­rity num­ber and were charged with iden­tity theft,” Wang said. “Pros­e­cu­tors used Prop. 100 to deny bail and get a guilty plea. The sen­tence would be time served and be­cause it was a felony con­vic­tion the per­son would go into the de­por­ta­tion pipe­line.”

Wang said she didn’t think any of the peo­ple de­nied bail were still await­ing trial.

Mari­copa County con­demned the high court’s re­fusal to hear the case. It also de­fended its ar­gu­ment that the no-bail pro­vi­sion was needed to en­sure that de­fen­dants ap­peared in court.

“By de­clin­ing to hear a chal­lenge to the 9th Cir­cuit’s rul­ing, the high court is ef­fec­tively per­mit­ting a fed­eral ap­peals court to veto a law en­acted to ad­dress spe­cific con­cerns in Ari­zona,” Mari­copa County Atty. Bill Mont­gomery said in a state­ment.

“First, there is a con­cern that de­fen­dants sub­ject to de­por­ta­tion by the fed­eral gov­ern­ment due to their im­mi­gra­tion sta­tus may be de­ported when re­leased from state cus­tody on bail and not be present for fur­ther pro­ceed­ings,” Mont­gomery said. “Sec­ond, is my own first­hand ex­pe­ri­ence in find­ing that de­fen­dants re­leased on bail for a se­ri­ous of­fense are far less likely to show up for court.”

Jus­tice Clarence Thomas, dis­sent­ing from the court ma­jor­ity, said its de­ci­sion “shows in­suf­fi­cient re­spect to the state of Ari­zona, its vot­ers and its con­sti­tu­tion. And it sug­gests to the lower courts that they have a free rein to strike down state laws on the ba­sis of du­bi­ous con­sti­tu­tional anal­y­sis.”

Jus­tice An­tonin Scalia joined the dis­sent and Jus­tice Sa­muel A. Al­ito Jr. said separately that he dis­sented as well.

Ari­zona has not fared well in the high court in de­fense of its im­mi­gra­tion laws. Three years ago, the Supreme Court blocked the state from en­forc­ing most of a law au­tho­riz­ing its po­lice to ques­tion and ar­rest peo­ple who could not show proof of their cit­i­zen­ship.

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