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Judges consider Arizona no-bail immigration law

PHOENIX -- A federal appeals court has decided to rehear arguments over complaints that an Arizona law that denies bail to people who are in the country illegally and charged with certain felonies violates their constitutional right to due process.

A three-member panel of the 9th Circuit U.S. Court of Appeals rejected a challenge to the law in June, but those seeking to overturn it, including lawyers from the American Civil Liberties Union, succeeded in getting a larger panel of the court to review the case again. The decision was issued this week.

Arguments are now set for the week of March 17 before an 11-member panel of appellate judges.

Proposition 100 was overwhelmingly approved by Arizona voters in 2006. The law denies bail outright to defendants who are in the country illegally and charged with certain felonies, including murder and sexual assault, under the premise that the suspects are considered a flight risk.

But the law also covers crimes such as conspiracy to commit human smuggling and identity theft.

Detractors argue the law violates numerous constitutional clauses, including the right of the accused to have their cases heard before a determination is made regarding bail.

"Obviously, we're delighted the court has decided to rehear the case," ACLU attorney Cecillia Wang said Friday. "Proposition 100 is really unprecedented law in U.S. history applying this no-bail rule. It's really contrary to the fundamental principles that you're innocent until proven guilty."

Maricopa County Attorney Bill Montgomery, who is named as a defendant in the lawsuit, declined comment Friday.

In supporting the law, then-Maricopa County Attorney Andrew Thomas said in 2006 it was needed to ensure the defendants stick around to answer for their crimes.

"Arizona has a tremendous problem with illegal immigrants coming into the state, committing serious crimes, and then absconding, and not facing trial for their crimes, either because they jump bail after they are let out, or because, when they are let out on bail, the federal government deports them," Thomas said in a television interview at the time, according to court records.

In the original ruling by the appeals court panel in June, the judges found the law did not run afoul of the Constitution.

"Denial of bail without individualized consideration of flight risk or dangerousness is not unusual," wrote Judge Richard Tallman. "After all, the vast majority of states categorically deny the right to bail to persons charged with capital crimes, and at least eight states categorically deny bail to those charged with crimes punishable by life imprisonment."

In a dissenting opinion, however, one of the three judges vehemently disputed the ruling.

"By employing a no-bail scheme that conclusively equates unlawful immigration status with unmanageable flight risk, Arizona is needlessly locking up undocumented immigrant arrestees awaiting trial under the guise of assuring their appearance at trial," Judge Raymond Fisher wrote.

He added that the true intent of the law was to punish defendants "for their assumed undocumented status and for their suspected but unproven crimes."

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