Court rejects Arizona’s no-bail law for immigrants in U.S. illegally

Maricopa County Sheriff Joe Arpaio, whose office was sued by two people who were denied bail.
(Ross D. Franklin / Associated Press)
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A federal appeals panel has overturned a 2006 Arizona law aimed at denying bail to people who are in the U.S. illegally and charged with a range of felonies.

Proposition 100, a ballot measure that gained approval from nearly 80% of the state’s voters, violates the due process clause of the 14th Amendment, according to an opinion released by the U.S. 9th Circuit Court of Appeals on Wednesday.

The law has been the subject of a class-action challenge since 2008, when two people who were in the country illegally filed suit against the Maricopa County Sheriff’s Office after they were denied bail for drug and assault charges. The plaintiffs were represented by the Arizona chapter of the American Civil Liberties Union.


Dan Pochoda, the chapter’s legal director, described the law as a “gross violation of due process.”

“We’ve been waiting a long time for this.... We’re obviously very pleased about the result,” Pochoda told The Times. “It’s a very important decision and a victory on many levels, obviously most immediately for the many folks who would be and have been since this referendum was passed in 2006 punished before trial.”

Last year, a 9th Circuit panel upheld the law in a 2-1 decision, but a majority of the court’s active judges moved to hear the case a second time.

In the ruling released Wednesday, nine members of the 11-member panel argued that the law was unconstitutional, failed to address an acute problem in Arizona and was applicable to an overly broad range of crimes.

Jack MacIntyre, a deputy chief at the Maricopa County Sheriff’s Office, told The Times that the 9th Circuit had in effect undermined the will of Arizona’s voters.

“It’s unfortunate that apparently the 9th Circuit is substituting themselves as some sort of a super legislature for the Legislature and voters in Arizona,” he said. “The law is very, very narrowly tailored to only deny bail to those that are in the country illegally who are charged with … the most serious felonies in Arizona.”


Although Proposition 100 was intended to target suspects charged with serious felonies, it was sometimes interpreted to rope in people facing much less serious charges such as illegally copying a sound recording or altering a lottery ticket, according to the 9th Circuit opinion.

But MacIntyre argued that certain lesser felonies were eliminated from the law before it passed the Legislature. He also contended that immigrants in the country illegally posed a significantly higher flight risk than other suspects.

“An individual who has already entered the country one or more times illegally and is now charged or possibly facing multiple decades in prison has little connection to the community and every reason to flee,” MacIntyre said.

The ACLU, however, has argued that the law unfairly punishes defendants with significant ties to the community, and Pochoda said there was little evidence to suggest those in the U.S. illegally were a greater flight risk than other suspects when the law passed.

He said the 9th Circuit’s ruling could take effect by early November, allowing hundreds of defendants whose immigration status remains in question to seek bail hearings.

In a statement, the immigrant rights group Puente lauded the decision and called for an independent monitor to ensure the Maricopa County Sheriff’s Office complies with the 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,” Puente Executive Director Carlos Garcia said in a statement.

Calls and emails seeking comment from a spokesman for Gov. Jan Brewer, who supported the ballot measure, were not immediately returned.

The ruling is the latest in a string of legal moves across the country to separate local law enforcement from the federal immigration process. In the last year, numerous police departments have refused to carry out federal requests to detain suspects who are in the country illegally and accused of minor crimes.

Times staff writer Cindy Carcamo in Tucson contributed to this report.