A federal appeals court will hear arguments Friday of whether Arizona voters stepped over the line by denying bail to illegal immigrants charged with certain crimes.
Cecillia Wang of the American Civil Liberties Union contends that keeping people locked up before their trial based solely on their immigration status amounts to punishment. She also said it presumes, improperly, that someone not in this country legally is automatically a flight risk without considering other factors.
She wants the 9th U.S. Circuit Court of Appeals to declare the 2006 voter-approved constitutional amendment invalid.
But attorney Tim Casey said the voters are entitled to conclude that those accused of certain offenses should not be able to get out on bail to ensure they will show up in court. For example, he said, someone who is charged with a felony while already out on bail while awaiting trial, must remain locked up.
And Casey, who is defending the Maricopa County officials who were the first to implement the change, said considering the fact that the person broke the law by being here illegally is no different.
Wang has to take her case to the appellate court because U.S. District Court Judge Susan Bolton rejected her request to void the law.
Under the terms of Proposition 100, bail is unavailable to those charged with "serious felony offenses'' if they are in this country illegally and if "the proof is evidence or the presumption great'' that the person is guilty of the offense charged.
It was crafted by former state Senate President Russell Pearce -- at the time a state representative -- who argued that anyone who has crossed the border illegally probably has few ties to this country. That, he said, makes them at greater risk of fleeing before trial.
Wang said, though, some of Pearce's comments show that the real goal was to punish illegal immigrants.
Among the comments she cited were that Pearce said wanted to "end this (federal) system of catch and release'' and that the measure was one of several to "make sure there are consequences and punishments'' attached to being an illegal immigrant.
Bolton, in her ruling, conceded the measure may have been motivated by a desire by some to punish people for past crimes, that being illegal immigration.
"But there is also evidence that legislators considered the issue of flight risk,'' the judge wrote. Anyway, Bolton said, even if some lawmakers were pushing the measure to control illegal immigration, that is not terribly important as it was the voters of Arizona who had the final say.
Wang said one problem with the measure is it imposes a one-size-fits-all approach.
She said judges already were able take into account all factors in considering whether a person is a flight risk, including legal presence in the country. So if someone were a recent arrival with no ties to the community, Wang said a judge had the power to deny bail.
"On the other hand, if the judge has someone before them someone who entered the U.S. on a visa 25 years ago and just never left, and their entire family is U.S. citizens and has had the same job for 25 years and lived in Phoenix for 25 years ... and he's only charged with a minor offense, then the judge should be able to make her own decision about the bail,'' Wang said.
She acknowledged that Proposition 100 applies only to what the Legislature defined as "serious'' offenses, specifically those that fall into certain punishment categories. But Wang said that includes many non-violent crimes, including shoplifting or theft of more than $3,000, unlawful copying of sound recordings, computer tampering and certain identity theft offenses. And she said those convicted of many of these offenses are eligible for probation.
Casey said that's irrelevant to the legal issue of the ability of voters to decide which crimes are not bailable.
"If you're the victim of a crime, then you have the right to ensure that the accused attends trial and, if there is in fact a conviction, that sentencing is served,'' he said.
In her ruling, Bolton also rejected Wang's contention that the measure violates the Eighth Amendment ban on "excessive bail.''
The judge pointed out that nothing in that federal constitutional provision requires that bail be available for all offenses. And Bolton said the Eighth Amendment does not preclude lawmakers -- or the voters -- from declaring certain offenses non-bailable.