Law defining bail for illegal immigrants clarified

Yuma Justice of the Peace David Cooper, like many other judges around the state, now has a better understanding of what factors a court can consider in determining when an individual facing a criminal charge is in the country illegally and whether they can be released on bail.

"It gives law enforcement some guidance as to providing information to judges to make that determination," Cooper said recently. "Essentially, I need that type of information to make the decisions I need to make."

Cooper, who presides over Justice Court Precinct 1, says Gov. Janet Napolitano signed new legislation that clarifies a new law, passed by voters in November 2006 as Proposition 100, which relates to illegal immigrants and their eligibility for bail.

It is intended, Cooper added, to put a stop to some judges who were allowing some illegal immigrants arrested by police to be released on bail even though they are in this country illegally.

Prop 100 says illegal immigrants who are accused of certain serious crimes must be denied bail if the presumption of their guilt is great.

That same measure also says a person can be denied bail if prosecutors show there is "probable cause" that they are not in the country legally.

Cooper explained there had been a dispute with judges in some counties saying they don't have enough legally admissible evidence to conclude that someone did, in fact, cross the border illegally.

The governor also inked her signature to another measure that spells out what kind of proof people must present to prove they are in this country legally.

Since a judge is not allowed to ask someone their residency status, Cooper said, the court has to rely on the information provided by law enforcement.

Cooper explained that when someone is arrested, the court creates a case file on them. Included in that case file, he said, is a document called a release questionnaire, which is filled out by law enforcement agencies at the time of arrest and viewed by a judge during the defendant's initial court appearance.

Cooper went on to say he received notification from the Arizona Supreme Court on July 3 that the questionnaire had been changed to include more space on the form for information on a person's residence status and the seriousness of the crime they allegedly committed.

"The form now includes plenty of space for law enforcement to provide a factual basis on both those Prop 100 matters," Cooper said. "The judge will read it and make his decision based on that information."

Capt. Eben Bratcher of the Yuma County Sheriff's Office said his agency has been using an updated version of that form that covers the new law for several weeks now.

Bratcher explained the sheriff's office does not determine whether an individual is in the country illegally.

He said that when YCSO responds to a call and comes in contact with an individual who may be in the country illegally, they contact U.S. Customs and Border Protection, which is the agency that determines an individual's residency status.

"We are lucky here in Yuma because the Border Patrol is always able to respond," Bratcher stated.

Bratcher added that even if the individual is determined to be in the country illegally, they are still arrested and booked in the county jail and prosecuted on any possible state charges. At that time, Border Patrol also puts what is called an immigration hold on the person.

"If that individual makes bail or is released, they still aren't let go," Bratcher explained. "With that hold on them, they aren't released back onto the street, they are turned over to the custody of the Border Patrol."

Under the new measure, a Class 1, 2 or 3 felony or an aggravated DUI are considered nonbailable offenses for someone determined to be in the country illegally.

"It has to be both," Cooper said. "It is an 'and,' not an 'or,' so both criteria of the person being in the country illegally and having allegedly committed a serious crime must be met."

Cooper explained that when someone is arrested, they are required by law to be seen by a judge within 24 hours. That hearing, which is typically held in Justice Court, is called an initial appearance.

It is during that initial appearance that the judge will determine the person's residency status and whether they are being held on an offense that isn't eligible for bail.

"Under the new changes, you cannot hold someone without bail for a less serious offense, even though they are in the country illegally," Cooper added.

Another change, Cooper said, is that now both the prosecution and defense can ask for a re-examination of the conditions of release for someone being held without bail under the new law. Prior to the change, only the defense could ask for the hearing.

Cooper said Yuma Justice Court will be providing all the area's law enforcement agencies with the new form so it can be used as soon as possible.

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James Gilbert can be reached at jgilbert@yumasun.com or 539-6854.