PHOENIX — Calling it a violation of constitutional rights, a federal appeals court this morning voided a voter-approved measure which denied bail to those not in the country legally who were arrested for other crimes.
Writing for the court, Judge Raymond Fisher said there is a presumptive right of those arrested to be released on bail. And he said the fact someone may have entered the country illegally is an entirely separate issue and irrelevant to the question.
Under the terms of Proposition 100, approved by voters in 2006, bail is unavailable to those charged with "serious felony offenses" if they are in this country illegally and if "the proof is evident or the presumption great" that the person is guilty of the offense charged.
It was crafted by former state Senate President Russell Pearce — at the time a state representative — who argued that anyone who has crossed the border illegally probably has few ties to this country. That, he said, makes them at greater risk of fleeing before trial.
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Voters approved the 2006 measure on a 3-1 ratio.
But Fisher said there was absolutely no evidence in the record that those in the country illegally are more likely not to show up for trial than lawful residents.
He also said that the law is not limited to extremely serious offenses.
"Instead, they encompass an exceedingly broad range of offenses, including not only serious offenses but also relatively minor ones, such as unlawful copying of a sound recording, altering a lottery ticket with intent to defraud, tamper with a computer with intent to defraud and theft of property worth between $3,000 and $4,000," Fisher wrote.
The court also said the state constitutional amendment is flawed because it does not require prosecutors to prove that a specific defendant is a flight risk but instead lumps all undocumented individuals into a single category.
