Arizona No-Bail Law Discriminates?

The Ninth Circuit Court of Appeals, sitting en banc, last week held a  re-hearing of an argument challenging a section to Arizona’s Constitution that denies bail to undocumented immigrants.  The contention is since this Arizona Constitutional clause is limited only to undocumented immigrants that it unfairly discriminates with a type of national origin claim.

The first time around, the Court held ‘No-Bail’ clause did not violate the Due Process clause of the Fourteenth Amendment, Excessive Bail clause of the Eighth Amendment, nor the Sixth Amendment’s right to counsel.  Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013).

The American Civil Liberties Union (ACLU) asked the entire Ninth Circuit to rehear the case (instead of a three judge panel), and the Court agreed to hear the argument en banc (entire court).  The ACLU argued Tuesday in a federal appeals court in San Francisco that a voter-approved Arizona law denying bail to undocumented immigrants should be found unconstitutional and struck down. The ACLU argued the result of the law is that Latino immigrants are held in jail before they have been convicted of crimes while other groups are not.

Arizona No-Bail Law

In 2006, the voters of Arizona overwhelmingly approved Proposition 100 an amendment to the Constitution of Arizona, which created an exception to the general bail policies.  Undocumented immigrants would be denied bail for all serious felonies.

The law states:

For serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.

Ariz. Const. art. II, §22 (A)(4).

The No-Bail law is an example of a facially non-neutral statute.  The statute identifies a class of people, those who are undocumented inside the United States, and applies special circumstances just to them.  Thus, undocumented immigrants are potentially being treated differently than those who are not.  Critics charge this law is disparate treatment — where intentional treatment is used in an unlawful manner.

Proponents of the law say is based in public safety and minimizing those who are flight risks.

Interestingly enough, when passed the law did not state a procedure for judges to investigate whether the defendant was undocumented or not.  In 2007, the Arizona issued an administrative order clarifying the procedure for all state judges. At an Initial Appearance the court shall: 1. Make a determination if probable cause exists for the alleged crime; 2. If the allegation involves A.R.S. § 13-3961.A.5, the court shall then determine whether probable cause exists to the legality of the defendant’s residence in the United States; 3. If the court finds probable cause for steps 1 and 2 the court shall hold an evidentiary hearing to determine if bail will be denied.  Amin. Order No. 2007-30, avialable at (last visited March 26, 2014).  This is the current procedure that is used. Ariz. R. Crim. Pro. 7.4(a).

What is Bail

The concept of bail predates the American judicial system and is borrowed from the English common law.

 [E]xcessive bail ought not to be required: though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case, to determine.

— Sir William Blackstone, Of Commentaries on the Laws of England (1765-1769), book 4, ch. 22 Of Commitment and Bail.

The idea of bail is simply the state is taking a risk by releasing the accused, and in return the accused must pay an equitable amount to compensate for that risk. Stack v. Boyle, 342 U.S. 1, 5 (1952). There are situations in which bail is revoked and the accused will stay in custody throughout the trial.  Setting the amount of bail is generally within the sound discretion of the trial court, whose determination is subject to review in the appellate courts for abuse of discretion.

It is seldom that bail categorically denied.  Only one other state has a law that categorizes bail based upon citizenship status.  Mo. Rev. Stat. § 544.470(2). With only two states that have such statutes (Arizona and Missouri), it is almost an anomalous practice, not even close to the norm.

Ninth Circuit Court of Appeals – First Time

Interestingly, both the majority and the minority opinions use the same standard. The United States Supreme Court said to determine if bail is an excessive constraint on liberty, impermissible punishment, or permissible regulation two factors are used: 1. Does the reason for the bail match the legislative intent; and 2. Is the bail excessive in relation to the regulatory goal?  United States v. Salerno, 481 U.S. 739, 747 (1987).

The Arizona Legislature made no formal findings on the purpose of Proposition 100 ‘No-Bail.’  This forced the court to interpret their intentions, which is where it gets sticky.  Both sides, the majority and the minority, look to committee hearings where legislators make statements in favor and against the proposed legislation in order to parse together an intention.  Furthermore, both sides agree that illegal immigration entered into the debate on the bill.  Where the sides depart is how much influence the illegal immigration debate had on the legislative intent.

For the majority, they did not think the intention of the bill was to punish undocumented immigrants.  The court examined information presented to the voters, statements by politicians and the Maricopa County Attorney, and the media coverage.  The majority insists the intent was on flight risks and safety of the public.

The minority, viewed the evidence differently.  State Rep. Russell Pearce, State Rep. Ray Barnes, State Sen. Jack Harper, State Rep. John Kavanaugh, all made disparaging remarks tying illegal immigration to the ‘No-Bail’ legislation.  Because of this Judge Fisher says in his dissent:

Fairly viewed, however, the legislative record as a whole clearly shows that legislators were motivated at least in large part by an overriding desire to punish undocumented immigrants for being in the country unlawfully — i.e., that lawmakers ‘intended to impose punitive restrictions’ on undocumented immigrants.

Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054, 1075 (9th Cir. 2013) (Fisher, J., dissenting).

The second prong of the analysis is whether ‘No-Bail’ is excessive.

The majority determines Arizona’s interest is superior to any individual right asserted.

Balancing the individual’s right to liberty with Arizona’s compelling interest in assuring appearance at trial, we cannot categorically state that pretrial detention offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.

Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054, 1064 (9th Cir. 2013) (internal citation omitted).

The minority again did not the same analysis. Judge Fisher notes that there is no evidence of the flight risk or safety being a problem. There are no studies, no statistics to back up the claim.  Thus, any disparate treatment is excessive.  Taking his analysis a step further, Judge Fisher challenges the majority’s notion that all illegal immigrants are flight risks and must be evaluated on a case-by-case basis.  Some undocumented immigrants have strong ties to communities in the United States.  Their only home may be in the United States.  They may be here for more than one generation.  The blanket ‘No-Bail’ provision does not take any of these factors into account.


Ultimately the full bench on the Ninth Circuit Court of Appeals will get a chance to determine if this provision is constitutional or not.

A blanket provision that covers an entire class of people, undocumented immigrants, by its nature stereotypes.

Procedure by presumption is always cheaper and easier than individualized determination.

Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054, 1079 (9th Cir. 2013) (Fisher, J., dissenting) (quoting Stanley v. Illinois, 405 U.S. 645, 656-57 (1972)).

I hope the Ninth Circuit reverses its first ruling.



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