Judicial Watch • Illegal Immigrant Bail Law Challenged Again

Illegal Immigrant Bail Law Challenged Again

Illegal Immigrant Bail Law Challenged Again

DECEMBER 11, 2008

A federal judge will hear a lawsuit challenging an Arizona law that denies bail to illegal immigrants charged with serious felonies, even though the state Court of Appeals has already upheld its constitutionality. 

Overwhelmingly passed by voters in 2006, Proposition 100 amended Arizona’s Constitution to prohibit bail for any person who is charged with a serious felony offense if the person charged entered or remained in the United States illegally. 

The idea, according to the county prosecutor who authored the law, is to assure that suspects stay in jail and face criminal charges rather than slip across the southern border to avoid prosecution. In fact, officials say the measure is essential to halt a border-state crisis of offenders that elude justice in the U.S.

Arizona courts have upheld the law, rejecting a challenge from an illegal immigrant who claimed it was unconstitutional under the Equal Protection or Due Process Clauses of the United States Constitution. The illegal alien, Melvin Omar Hernandez, had been charged with two class four felonies for having fake Social Security and U.S. Residency cards. He eventually pleaded guilty. 

Determining that Hernandez was a flight risk, the judge hearing his case denied bail under Arizona’s new law. Hernandez petitioned the Arizona Court of Appeals, which struck down the argument that his Constitutional rights to bail were violated. In its 36-page opinion, the court said that Proposition 100 is a legitimate regulatory provision ensuring that illegal aliens accused of certain serious felonies appear to stand trial.  

Regardless, a federal judge as agreed to hear a lawsuit seeking to strike down the hugely popular bail measure. The coalition of civil rights groups challenging it claims that every person is entitled to bail, regardless of immigration status or the severity of the crime. 

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