Arizona voters are legally entitled to make bail off limits to some people who are not in this country legally, a federal appeals court ruled Tuesday.
In a split decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a 2006 voter-approved constitutional amendment which bars judges from releasing those accused of certain serious offenses "if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.''
Attorney Cecilia Wang of the American Civil Liberties Union argued that it was unconstitutional to deny bail solely on the basis of illegal presence. Wang said judges should take into account each individual's circumstance to determine if they are likely to appear at trial or are a flight risk.
But Judge Richard Tallman, writing for the majority, said there's nothing illegal about that.
"Denial of bail without individualized consideration of flight risk or dangerousness is not unusual,'' he wrote.
For example, he said, most states deny bail to those charged with capital offenses. And eight will not release those awaiting trial for crimes punishable by life in prison.
And Tallman said the measure serves a legitimate purpose.
"Arizona's substantial interest in ensuring that those charged with serious state-law crimes are available to answer for them is undeniable,'' he wrote.
Tuesday's decision was not unanimous. Appellate Judge Raymond Fisher faulted the logic and the conclusion of his two colleagues.
"Without any evidence that unauthorized immigrants released on bail have been or are less likely to appear for trial compared to arrestees who are lawful residents, the majority accepts Arizona's unsupported assertion that (ITALICS) all (ROMAN) unauthorized immigrants necessarily pose an unmanageable flight risk,'' he wrote.
And Fisher reaches a different conclusion about the real purpose of the measure.
"Arizona is plainly using the denial of bail as a method to punish 'illegal' immigrants, rather than simply as a tool to help manage arrestees' flight risk,'' the judge wrote. He said that "contravenes the Constitution's fundamental prohibition on punishment before determination of guilt in a criminal trial.''
Wang vowed to appeal to the full 9th Circuit.
The ballot measure was crafted by then-State Rep. Russell Pearce, R-Mesa, who later was to go on to become the sponsor of SB 1070 and other measures aimed at illegal immigration. He argued that those who have crossed the border illegally probably have few ties to this country, make them a greater risk of fleeing before trial.
Voters apparently agreed, approving the measure on a margin of 3-1.
Wang argued to the court that some of Pearce's comments during the legislative debate show the goal was not to assure court appearance but instead to punish those who were in this country illegally.
Among the comments she cited were Pearce saying he wanted to "end this (federal) system of catch and release'' and the measure was one of several to "make sure there are consequences and punishments'' attached to being an illegal immigrant.
But Tallman said those weren't the only arguments.
For example, the judge noted that Pearce said one of the factors involved in setting bail now is flight risk.
"If you are not in this country legally and have no roots ... their flight risk is a much greater risk,'' Pearce said at the time.
Tallman said others who wrote statements in support of Proposition 100 cited the need to ensure that people showed up for trial. All that, he said, shows that the purpose of the constitutional amendment was not simply to punish illegal border crossers by keeping them locked up.
Separately, Tallman rebuffed claims that the measure is preempted by federal law because it attempts to regulate immigration.
"The Proposition 100 laws neither determine who should be admitted to the United States nor prescribe conditions under which legal entrants may remain,'' he wrote. "Rather, those who are subject to detention ... are being detained because of the crime they are accused of committing.''
The judge also said state officials are not directly facilitating immigration removals. And he said the fact that a state court is determining someone's immigration status for the purpose of determining bail is not binding on any decisions ultimately made by federal immigration officials.