Fault Lines
21 June 2017

SCOTUS: Arizona’s “No Bail For Immigrants” Still Unconstitutional

June 11, 2015 (Mimesis Law) — Immigrants caught in the crosshairs of criminal and immigration law had a big day at the Supreme Court last week. First thanks to Mellouli v. Lynch, the case involving a Tunisian man who was deported because of his socks, which the justices ruled you can’t do.

The second victory was actually a non-decision: The justices denied review in Maricopa County v. López-Valenzuela, which by the caption alone you can guess involved Arizona Sheriff “Crazy” Joe Arpaio, no stranger to legal controversies. At issue here was the passage and implementation of Proposition 100, a ballot measure that amended the Arizona constitution.

The Supreme Court’s inaction was a big deal because it left in place a ruling by the full U.S. Court of Appeals for the Ninth Circuit, which held in October that the state constitutional amendment violated the guarantee of “substantive” due process of the Fourteenth Amendment. In the context of this case, that means the state violated some fundamental right or liberty interest of those suing, here a class of persons suspected of having “entered or remained in the United States illegally.” Code for undocumented immigrants.

What could Arizona voters have done that was so patently unconstitutional towards them? No less than mandate that state courts deny them bail across the board whenever they’re accused of “serious felony offenses.” Despite the qualifier, this covered a wide swath of charges, like possessing a fake ID or shoplifting. What was especially egregious about Proposition 100 and its accompanying laws was that state judges were stripped of discretion; bail had to be denied no matter what, regardless of whether the person was a flight risk or a danger to the community.

Writing for the majority in López-Valenzuela, Judge Raymond Fisher blasted the ballot measure’s “categorical” denial of bail and noted that this “sweeping pretrial detention statute, directed solely at undocumented immigrants,” fails to square with due process. “The Supreme Court has made clear that in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” Fisher wrote.

The Supreme Court last week didn’t express its views on that ruling; it simply rejected Arizona’s petition for review. But Justice Clarence Thomas, joined by Justice Scalia, did express his views. To him, this case had nothing to do with respect for constitutional rights, but with respect for Arizona and its democratic choices. “The Court’s refusal to hear this case shows insufficient respect to the State of Arizona, its voters, and its Constitution,” he wrote.

This is not an uncommon sentiment at the Roberts Court. Whether the issue is Obamacare, same-sex marriage, or lethal injection, some on the court manage to boil down the controversy to a state’s prerogatives.

But to hear Thomas tell it, you’d think the majority’s refusal to hear López-Valenzuela means it’s running roughshod over the Constitution. “It is disheartening that there are not four Members of this Court who would even review the decision below,” he lamented. “States deserve our careful consideration when lower courts invalidate their constitutional provisions.”

Perhaps. But then again, Arizona’s was not just some grand amendment conferring state rights or expanding federal ones. It explicitly targeted a class of people by denying them something everyone else enjoyed: the right to a bail determination upon arrest based on the defendant’s individual circumstances. Maybe the Supreme Court, in declining the case, implicitly acknowledged a state can’t just single out minorities and treat them differently.

That was the underlying message of the other big Arizona case it decided in 2012, where, once again, the justices had to step in to curb a regime—the “show me your papers” law—that gave police unprecedented power to detain and question people who “looked” immigrant.

And in view of that pronouncement, maybe the Ninth Circuit ruling was enough. And there wasn’t any need, much to Justice Thomas’s chagrin, to review something that was a non-starter with respect to the rights of immigrants.

Main image via Flickr/Andrew Bardwell

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    29 January 2016 at 7:22 am - Reply

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    […] able to deny driver’s licenses to DREAMers, to implement a constitutional amendment that would’ve stripped bail access from undocumented immigrants or to allow a wholesale ban on ethnic studies at Arizona […]

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