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Posted on: June 1, 2015

U.S. Supreme Court to Allow Bail for Undocumented Criminal Suspects in Arizona

PHOENIX – Rejecting Arizona’s experience with Defendants fleeing prosecution, the U.S. Supreme Court will let stand a decision by the Ninth Circuit Court of Appeals that permits criminal suspects in Arizona without lawful authority who are charged with serious felony offenses to be eligible for bail and possible release into the community. The decision overturns a nearly 10-year-old law that was originally passed by a ballot initiative known as Proposition 100.

“By declining to hear a challenge to the Ninth Circuit’s ruling, the high court is effectively permitting a federal appeals court to veto a law enacted to address specific concerns in Arizona,” said Maricopa County Bill Montgomery. “First, there is a concern that defendants subject to deportation by the federal government due to their immigration status may be deported when released from state custody on bail and not be present for further proceedings. Second, is my own firsthand experience in finding that defendants released on bail for a serious offense are far less likely to show up for court.”

Montgomery also noted key points raised in the dissenting opinion authored by Justice Thomas and joined by Justice Scalia. Justice Alito also dissented from the Court’s denial of review. “Among the troubling areas of concern raised in the dissenting opinion is the erosion of respect for actions by State legislatures with the related increased willingness for courts to substitute their own policy judgments. The Congress should also note that it is likely time to once again require the United States Supreme Court to review federal court decisions striking down state constitutional provisions,” Montgomery said.

Approved by nearly 80 percent of Arizona voters in 2006, Proposition 100 denies bail to individuals charged with serious felonies where “the proof is evident or the presumption great that the person is guilty of the offense charged” and “there is probable cause to believe that the person has entered or remained in the United States illegally.” Following its passage, the measure, now codified in the Arizona Constitution, Article II, Section 22 (A)4, withstood subsequent legal challenges in the Arizona Court of Appeals, the U.S. District Court and before a panel of three judges of the U.S. Court of Appeals for the Ninth Circuit.

In October, 2014, a limited en banc panel of the Ninth Circuit ruled the law was unconstitutional citing a lack of evidence indicating undocumented immigrants pose an unmanageable or significantly greater flight risk than lawful residents. The Ninth Circuit also denied a request by Maricopa County to stay the ruling pending a petition for certiorari to the U.S. Supreme Court.

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