An Arizona state judge recently denied bond to Melvin Omar Hernandez because he believes Mr. Hernandez is an illegal immigrant and, thus, a flight risk.
It's a step unique to Arizona, which has a new law – approved by 78 percent of voters here in November – that essentially denies bail to suspected illegal immigrants who've probably committed serious crimes. Known locally as Proposition 100, it is intended to make sure those suspects stay in jail and face criminal charges rather than slipping across the southern border to avoid prosecution or getting deported by federal immigration officials.
But Hernandez is not a flight risk, his lawyers argue, and so the judge's ruling violates the spirit of Proposition 100. After all, Hernandez was arrested merely for possessing fake documents, and he willingly – without incarceration or police transport – turned up for two court hearings after his arrest, they note. The defense team is petitioning the state appeals court to reverse the judge's ruling, but it is also challenging the very constitutionality of Proposition 100 itself.
The appeals court is slated to hear arguments in the case Tuesday. It's not clear how soon a ruling will come or how many of the thorny issues surrounding Proposition 100 it will ultimately resolve. But no one expects that the matter will fade anytime soon, given the explosion of controversy over the new law this spring.
For one thing, there are at least 95 other people in Arizona in the same boat as Hernandez, with more on the way – and some of them may also emerge as test cases of the new law. For another, all sides in the battle over immigration perceive too much at stake to let it rest.
Advocates of Proposition 100 say it is in Arizona's interest to prosecute hardened criminals to the full extent of the law, and to do that the state needs to prevent them from retreating to Mexico or other countries of origin. Moreover, it is a potential way to collect data that have long been in short supply: the number of serious or violent crimes committed by undocumented immigrants.
Opponents say Arizona is depriving individuals – mainly Latinos – of basic constitutional rights, including due process and equal protection under the law. They also charge that the state law conflicts with US immigration law.
Though the short life of Proposition 100 has been marked by acrimony, all sides agree on a few things. All say Proposition 100 is proving costly to implement. They also agree that it enters uncharted territory by placing the burden of proving a person is in the US illegally on the state, rather than on the federal government.
"We do know that it is creating a financial burden by various entities involved – the county attorney's office, indigent defense agencies, Immigration and Customs Enforcement officials, and law-enforcement agencies," says Tim Ryan, associate presiding criminal judge for Superior Court in Maricopa County, which includes Phoenix. Because the law is so new, courts haven't calculated its costs. One reason for the extra resources is to staff the courts for an additional hearing for most of the Proposition 100 cases – 600 so far.
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.