No bail for illegal immigrants?

How the new law works

Because of controversy over how to interpret the letter of the law, the chief justice of the Arizona Supreme Court in early April laid out directions for the courts and law-enforcement officers on how to comply with Proposition 100. Here's how Chief Justice Ruth McGregor ordered the process to work.

If a judge or court commissioner finds probable cause that a defendant committed the serious crime for which he or she is accused and that the defendant is probably in the US illegally, another evidentiary hearing must be held. At that time, the court must determine whether "proof is evident or the presumption great" that the defendant is guilty of an offense listed in the law and use the same standard for assessing his immigration status. If the court finds that those standards are met, the defendant cannot be released on bail pending trial.

Moreover, Chief Justice McGregor ordered changes to the form police officers fill out for every arrest. "The modified form will direct law enforcement to set forth facts that indicate whether a defendant entered or remained in this country illegally," according to her administrative order. That change, in particular, has caused much consternation because it directs local police to assess someone's immigration status – a role they've not played in the past.

"The question is much broader than immigration issues," says Robert Hooker, Pima County public defender in Tucson. "It's what is the proper role ... of the court here?" Specifically, he asks, did the high court's order violate the Constitution's separation of powers requirement by laying out guidelines for law-enforcement officers?

Early results show that about half of the 350 defendants initially suspected of falling under Proposition 100's no-bond rule were subsequently released on bond or their own recognizance. If those numbers make defense lawyers unhappy, they make some prosecutors livid.

Charges of stymieing the law

Andrew Thomas, attorney for Maricopa County who helped get Proposition 100 on the ballot, says more people should behaving bond denied. "The standards seem to have changed [since the chief justice's order]," Mr. Thomas says. Court officers previously had been "more willing" to find that the state had met the test of "proof evident/presumption great," he says.

From the beginning, he charges, some in the criminal-justice system have undermined Proposition 100. He says it is needed because offenders had slipped across the border pending trial only to return to the US and commit other serious crimes.

To Kara Hartzler, an attorney who specializes in immigration law at the Florence Immigrant and Refugee Rights Project in Florence, Ariz., the problem lies with the law. "The way that it is drafted is so contrary to the way [US] immigration law is set up that this is going to be absurdly impossible to enforce," she says.

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