Court Reconsiders Arizona No-Bail Law for Aliens

Arizona’s voter initiative banning bail for undocumented aliens charged with a serious felony will get a second look from an 11-judge appeals panel.  The 9th U.S. Circuit Court of Appeals ordered reconsideration of a June vote to uphold the constitutionality of the law.

A divided three-judge panel upheld the law in the face of a due process claim as well as Eighth Amendment excessive bail clause and Sixth Amendment right to counsel attack.

In an order issued Thursday, a majority of 25 voting judges granted reconsideration of the case.

In 2006, Arizona voters overwhelmingly approved an amendment to the state constitution, known as Proposition 100, which said state judges may not set bail for unlawful aliens accused of serious felonies.

Felony arrestees Angel Lopez-Valenzuela and Isaac Castro-Armenta filed a class action seeking an injunction against the law.  They argued the law violated due process rights, protection against excessive bail and the right to an attorney.

By a 2-1 vote, the panel in June upheld the law, pointing to its overwhelming popular support by a margin of 78 percent to 22 percent.

The majority, written by Judge Richard Tallman, found Proposition 100 furthered the state’s “legitimate and compelling interest in seeing that those accused of serious state-lw crimes are brought to trial.”

In dissent, Judge Raymond Fisher said the Arizona legislature surmised that undocumented immigrants pose a greater flight risk than lawful residents because they supposed lack of strong ties to the community and a “home” in another country would allow them to flee.  “But this ignores those undocumented immigrants who have strong ties to their community and no home abroad,” Fisher said.

“There are a variety of methods to manage flight risk, such as bond requirements, monitoring and reporting requirements.  Proposition 100 ignores these tools for managing flight risk, instead mandating incarceration in every case,” he said.

The full curt agreed to rehear the case.  A hearing is likely to be set late in 2014.

Case: Lopez-Valenzuela v. County of Maricopa, No. 11-16487


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