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Ariz.'s No-Bail Immigrant Law Struck Down by 9th Cir.

By Brett Snider, Esq. on October 16, 2014 | Last updated on March 21, 2019

An Arizona law denying bail to certain undocumented immigrants was struck down on Wednesday by a federal appeals court, finding the law to be an unconstitutional violation of due process.

This isn't the first time that the 9th U.S. Circuit Court of Appeals has reviewed Proposition 100, a 2006 Arizona ballot measure that denied bail to undocumented immigrants charged with "serious" crimes. The Los Angeles Times reported that the appellate court upheld the law in a 2-1 decision last year, but the full panel wanted to rehear the case.

So why did the 9th Circuit decide to struck down the no-bail law this time?

Prop. 100 and Bail Limits

Proposition 100 mandated that Arizona courts could not allow bail for undocumented immigrants charged with "serious felony offenses." Arizona law defines "serious felony offenses" as Class 1, 2, 3, and 4 felony offenses and/or aggravated DUIs -- and Arizona has particularly strict DUI laws. As long as there is one of these charges and probable cause to believe a person is residing in the country illegally, an Arizona court is forced to deny bail.

It is permissible to deny bail for certain egregious crimes such as murder, but the range of suspected crimes included in Prop. 100 was staggering. Under the Arizona no-bail law, a man who blew a 0.15 percent in a Breathalyzer test and lacked a driver's license may have been denied bail -- despite the fact that he may pose no flight risk.

The U.S. Supreme Court has placed limits on excessive bail, recognizing that restricting a right to pretrial release muffles a defendant's presumption of innocence. Here the 9th Circuit ultimately decided that Prop. 100 was too great a burden on defendants' due process rights.

Substantive Due Process

In Wednesday's 9-2 decision, the court decided that under the Due Process Clause of the Fourteenth Amendment, defendants have a fundamental right to be free of bodily restraint. Since Arizona's no-bail law implicates this right, the law must withstand strict scrutiny.

Since the law was not narrowly tailored, it fails to withstand this high level of judicial scrutiny -- in part because there was no evidence that undocumented persons were actually a significantly greater flight risk.

Law Still in Effect, for Now

The Times reports that the 9th Circuit's ruling "could take effect by early November," but until then, undocumented Arizona suspects may be stuck in custody.

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