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9th. Cir. Strikes Ariz. Law Denying Bail for Undocumented Immigrants

By Mark Wilson, Esq. on October 16, 2014 | Last updated on March 21, 2019

Arizona and harsh immigration laws go together like peaches and cream, Laverne and Shirley, Joe Arpaio and civil rights claims. Arizona's Proposition 100, approved by voters in 2006, denies bail to undocumented immigrants for a variety of felonies, whether or not the defendant is dangerous or a flight risk. As in: no discretion, never, nuh-uh, nada. No bail for you.

Angel Lopez-Valenzuela and Isaac Castro-Armenta sued, calling the law unconstitutional. An Arizona district court found for Arizona, and a three-judge panel of the Ninth Circuit agreed. Yesterday, however, after an en banc rehearing, the court reversed the district court's decision.

Arizona's Law Violates Due Process

A state isn't permitted to punish a defendant before he or she has been convicted of a crime. Pretrial detention, therefore, has to be predicated on something other than punishment. In United States v. Salerno, the Surepme Court articulated a two-pronged test for determination constitutionality of pretrial detention: The detention must serve a "'compelling' and 'overwhelming' governmental interest 'in preventing crime by arrestees'" and must be "carefully limited" to that purpose. The level of scrutiny is so high because of an unconvicted defendant's liberty interest, which dissipates only when he or she has been convicted.

To begin with, the court reminded everyone that the right to due process applies to persons, not just citizens. Acknowledging the compelling interest, the en banc majority "reject[ed] the proposition that the Proposition 100 laws are carefully limited, as Salerno requires." It didn't find the problem to be "particularly acute" (there was no evidence that undocumented immigrants presented a greater flight risk than any other group), and it wasn't limited to "serious" offenses (it's a felony in Arizona to fraudulently alter a lottery ticket); and even if those two factors were in the state's favor, the categorical, mandatory denial of bail in all situations meeting the statutory criteria isn't "carefully limited" to resolving the state's asserted problem.

While the court didn't find enough evidence of punitive legislative intent (though it did find some), it still concluded that the "severe lack of fit" between the law's methods and objectives itself demonstrates that the law is impermissibly punitive.

Judge Jacqueline Nguyen concurred to assert that the legislative intent of the law clearly was "to punish undocumented immigrants for their 'illegal' status."

Dissent: A Perfectly Fine Solution

Judges Richard Tallman and Diarmuid O'Scannlain dissented together, and O'Scannlain even dissented separately. Tallman said that Proposition 100 was a legitimate policy decision that solved a state problem: namely, "an ineffective bail system that was letting too many illegal aliens avoid answering for their serious felony charges." Tallman even cited an episode of Lou Dobbs' defunct CNN show for the proposition that Arizona had a terrible problem with undocumented immigrants fleeing before trial (the evidence is a statement from a now-disbarred Maricopa County attorney to that effect). As you might expect, Tallman also had a problem with using the substantive due process framework because there's no fundamental right at stake here.

O'Scannlain said that the case should have been analyzed under the Eighth Amendment's prohibition on excessive bail, and then proceeded to find that Arizona's statute probably wasn't excessive, as the Eighth Amendment "does not, however, restrict legislative discretion to declare certain crimes nonbailable."

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