Court issues ruling on bail and illegal aliens

PHOENIX - Denying bail to those not in this country legally who are charged with certain felonies does not violate their constitutional rights, the state Court of Appeals ruled Tuesday.

The judges rejected arguments that the no-bail requirement, approved by voters in Proposition 100 last year, unfairly targets people who entered this country illegally. Attorneys for the defendant also said it "inflicts punishment without due process.''

Judge Donn Kessler, writing for the unanimous court, acknowledged that the U.S. Constitution "protects all persons present in this country - including illegal aliens - from unjustified and unfair governmental interference with fundamental rights.''

But Kessler said it is clear the purpose of Proposition 100 is not to punish those not here legally but simply to ensure that they appear at their trials. And that, he said, allows a person's legal status to be taken into consideration.

The case involves a man originally stopped for possession of an open container of alcohol while in a vehicle. But he ultimately was charged with possession of forged documents related to identification he showed police.

Released without bail, he showed up for his initial court hearing. But at that time the judge, following procedures mandated by the Supreme Court in the wake of Proposition 100, ordered him held without bond.

Kessler said the right of defendants to remain free pending trial is conditional on people giving adequate assurances they will show up for trial and submit to sentencing if found guilty. That, he said, formed the basis of setting bail.

"Yet even in colonial times, the government's right to deny bail was recognized in cases where a defendant was more likely to flee than to face trial,'' the judge said.

And Kessler said new restrictions are acceptable as long as the intent is not to punish but to keep those charged with crimes from leaving the country.

"Proposition 100 reflects that our electorate and Legislature perceived pretrial detention as a potential solution to a pressing societal problem,'' the judge wrote. That, Kessler said, means the measure "serves a legitimate government interest'' and is legal.

Kessler also pointed out that the measure, approved by voters last year by nearly 78 percent of the voters, does not deny bail to everyone not here legally charged with any crime. The measure applies only to those charged with certain serious felonies, all of which are punishable by at least a year in state prison.

The court, however, said bail can be denied only to those who are, at the time of the crime, in this country illegally despite the language of Proposition 100 which says it applies to anyone who "entered or remained in the United States illegally.'' The judges said those who have since become legal U.S. residents are not subject to Proposition 100, even if they crossed the border illegally in the first place.