The Supreme Court on Wednesday afternoon refused to block a federal appeals court ruling striking down an amendment to the Arizona constitution that prohibits the pretrial release of undocumented immigrants charged with serious crimes.
The Court was dealing at this point only with a plea by Arizona officials to delay the ruling at issue, by the U.S. Court of Appeals for the Ninth Circuit, and the order did not give an explanation for refusing that request. However, two Justices indicated in a separate opinion that the likely reason was that there was no real chance that at least four members of the Court — the minimum number needed — would agree to hear an appeal by the state when it is formally filed.
At issue in the case is the voter-approvcd “Proposition 100,” made a part of the state constitution in November 2006. Passed by a margin of seventy-eight to twenty-two percent, the measure banned state courts from ordering the release on bail of any individual ruled to be in the country illegally, if he had been accused of a serious crime, proof of the crime was “evident,” and there were a “great presumption” that he was guilty.
In urging the Supreme Court to allow Arizona to enforce the ban on bail for undocumented immigrants, state officials argued that most of the states now have laws that flatly ban bail, and that most of them are “motivated by concerns that bail is not sufficient to overcome the risk that the arrestee will fail to appear for trial.” That, they argued, is what is behind the Arizona ban, enacted on the belief that undocumented immigrants charged with serious crimes would flee rather than show up for a trial.
A few of the states’ laws, the application said, are aimed at the concern over future dangerousness. But whatever motivated the passage of no-bail laws, the state argued, none of those laws require that an arrested individual covered by the law has a right to a decision, on the facts of the individual case, whether there is a risk of flight.
The Supreme Court, by refusing the state’s request for a delay, allowed the October 15 decision by the en banc Ninth Circuit nullifying the bail ban to go into effect. That will mean that undocumented immigrants will now be able to seek bail from a judge while awaiting trial on criminal charges. There is no actual guarantee of bail; that will be up to individual judges, but they now cannot flatly refuse based on Proposition 100.
Justice Clarence Thomas, joined by Justice Antonin Scalia, filed a separate statement, but it was not a dissent. They expressed regret that the Court does not have a strong inclination to grant review of lower court rulings striking down state laws, as it does when a federal law has been nullified by a lower court.
But they went along with the stay denial, saying they joined their colleagues in doing so “only because there appears to be no reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.”
Under Arizona law, an individual arrested for a suspected crime must make an initial appearance in court within twenty-four hours. Proposition 100 operates at that hearing, and the judge must deny bail regardless whether the individual poses either a danger to the community or a risk of flight, if there is proof showing the evidence of crime to be sufficiently strong. The test of whether the individual came into the country or remained here illegally is “probable cause.”
The accused individual can dispute the claim of illegal status, and the court must hold a prompt hearing to decide that. The individual, however, has no right to try to prove that he is not a flight risk.
Two individuals, Angel Lopez-Valenzuela and Isaac Castro-Armenta, challenged the constitutionality of Proposition 100 in federal court. They sued on behalf of a class of individuals in similar situations. Both were in jail at the time in Arizona’s Maricopa County, after being found to be undocumented immigrants. Each sought a hearing on whether they could be released on bail, giving them a chance to argue that they were not dangerous and would not flee.
Their legal challenges claimed violations of their rights to due process, the ban on excessive bail under the Eighth Amendment, and other guarantees of constitutional rights. The district court ruled against them, and that was upheld by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
However, the full Ninth Circuit granted en banc review and struck down Proposition 100, by a nine-to-two vote. The majority ruled that it violated the guarantee of “substantive due process” under the Fourteenth Amendment. The ballot measure, the court ruled, was not aimed at an acute problem, was not confined to extremely serious offenses, and failed to allow undocumented immigrants a chance individually to show that they were neither dangerous nor a flight risk.
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