PHOENIX — A federal appeals court agreed Thursday to hear new arguments about whether Arizona voters can legally deny bail to some people charged with crimes who are in the country illegally.
In a brief order, Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, said enough of his colleagues want to review last year’s divided ruling by a three-judge panel of the court to uphold the 2006 constitutional provision. A hearing before an 11-judge panel was set for March.
Attorney Tim Casey, representing Maricopa County, argued that the law is constitutional, at least in part because it “serves a compelling interest” by ensuring defendants charged with felonies remain in this country until trial.
But Cecilia Wang, an American Civil Liberties Union attorney, said the real purpose behind the law is to punish people who are in this country illegally. She argued there is no legal reason to impose a blanket prohibition on bail.
The voter-approved law makes bail unavailable to those charged with “serious felony offenses’’ if they are in this country illegally and if there is enough evidence “the presumption great” that the person is guilty of the offense charged.
It was crafted by former Republican 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.
Voters approved the constitutional amendment by a 3-1 ratio.
A trial judge upheld the measure, as did that three-judge panel of the 9th Circuit in a 2-1 decision. But Wang said those rulings run contrary to constitutional requirements that essentially say the sole purpose of bail is to ensure that those charged with certain crimes show up in court.
“It does away with individualized determinations about people’s flight risk, turns the presumption of innocence on its head, in essence, and holds people in jail even though they might be found not to pose a flight risk by a court,” she said.
Wang said only when a judge determines no amount of bail would prevent someone from fleeing can that person be held until trial. And there are reasons for some across-the-board prohibitions on bail for those accused of capital offenses and those who previously have jumped bail.
She said, though, there is no reason to presume that someone who has been in the country for years, has a family here and is working will flee just because he or she is charged with a minor felony, one for which the penalty might be little more than probation.
As proof, she said there were people who were awaiting trial at the time the law was approved who had been out on bail, were showing up for court hearings as required — and then were taken into custody solely because of the new requirement.
“And that’s just a blatant due-process violation,” Wang said.
But Casey, in his legal filings, pointed out that the three-judge panel rejected that contention.
In the majority ruling, Judge Richard Tallman said while it is clear that lawmakers who put the issue on the ballot were concerned about illegal immigration, “a fair reading of the record does not support (challengers’) argument that Proposition 100’s primary purpose is to punish and deter immigration offenses.’’
Casey also said the U.S. Supreme Court has concluded the mere fact that someone is detained does not necessarily lead to the conclusion the government is imposing punishment.
He said there are sufficient protections built in, including the right to a prompt hearing on bail and the fact that defendants are entitled to have their cases tried within 150 days.
Wang, however, has cited other evidence, including some comments made by Pearce at the time.
She said Pearce said 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.”