Arizona’s voter initiative banning bail for undocumented aliens charged with a serious felony survived a constitutional challenge Tuesday in the 9th U.S. Circuit Court of Appeals. The panel voted 2-1 that Proposition 100 did not violate the Constitution’s due process protections, excessive bail clause of the Eighth Amendment, or the Sixth Amendment right to counsel.
In dissent, Judge Raymond Fisher called Proposition 100’s legislative history shows “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.”
In 2006, Arizona voters overwhelmingly approved an amendment to their state constitution known as Proposition 100. It barred state court judges from setting bail for serious felony offenses, if the person charged has entered the U.S. illegal. The measure did not define “serious felony” offenses, but left that to the Legislature.
Angel Lopez-Valenzuela and Isaac Castro-Armenta, two men arrested for felonies, filed a class action in federal court against Arizona. Lopez-Valenzuela was charged with transport of drugs for sale and Castro-Armenta was accused of assault with a deadly weapon, kidnapping and assisting a criminal syndicate.
Both were denied bail under Proposition 100.
“Denial of bail without individualized consideration of flight risk or dangerousness is not unusual,” said Judge Richard Tallman for the majority. “After all, the vast majority of states categorically deny the right to bail to persons charged with capital crimes,” he said.
Tallman said Arizona has a substantial interest in ensuring that those charged with serious state-law crimes are available to answer the charges.
“Because Proposition 100 is reasonably related to the legitimate goal of controlling flight risk, we hold that it is not excessive in violation of substantive due process under the Constitution,” Tallman said.
Fisher’s dissent argued that he would hold Proposition 100 violates due process protections and is an overbroad scheme that locks up undocumented immigrant arrestees awaiting trial without demonstrating individually who would be a flight risk and who would not.
Case: Lopez-Valenzuela v. County of Maricopa, No. 11-16487
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