After years of litigation, the U.S. Court of Appeals for the Ninth Circuit announced yesterday that Arizona’s no bail law for unauthorized migrants violates the Due Process Clause of the Fourteenth Amendment. Lopez-Valenzuela v. Arpaio, No. 11-16487, slip op. (9th Cir. Oct. 15, 2014) (en banc).
This case involved a facial challenge to Arizona’s Proposition 100, a slate of amendments to the state constitution that, among other things, prohibit state judges from setting bail of any amount for people charged with a slew of state felonies if the judge had probable cause to believe that the defendant lacked authorization to be present in the United States. No individualized determination of flight risk or dangerousness was possible.
One of the crimes engulfed by this provision is the state’s human smuggling offense which some state prosecutors have used to prosecute migrants for smuggling themselves—what has been perversely dubbed “self-smuggling.” According to legal scholar Ingrid Eagly, “[u]ndocumented immigrants charged with smuggling themselves could now be detained without any possibility of bond.” Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 UCLA L. Rev. 1749, 1763 (2011).
As I write in my forthcoming book, Crimmigration Law (American Bar Association 2015),
Arizona may be the most prominent state to have limited bail possibilities for migrants, but it is not alone. In Utah, unauthorized migrants are subject to a rebuttable presumption that they are flight risks. Missouri has had a similar no-bail provision since 2008. That statute goes one step further than Arizona or Utah by presuming that anyone who the judge “reasonably believes…is an alien unlawfully present in the United States” can ever be released under any conditions that will reasonably assure her presence in court. Thus far no one has challenged the constitutionality of Missouri’s no-bail provision.
Despite the expansion of state statutes and constitutional provisions authorizing especially broad detention powers toward migrants, such laws raise complicated legal questions. At the time of this writing, the full Ninth Circuit was expected to issue an opinion on the constitutionality of Arizona’s no-bail constitutional provision, but it had already survived a constitutional challenge when reviewed by a three-judge panel of the Ninth Circuit. The Ninth Circuit panel concluded that the no-bail law does not violate the Fourteenth Amendment’s substantive due process protections because it is not intended to punish and deter immigration offenses, and because it is reasonably related to the legitimate governmental objective of limiting the flight risk of defendants accused of a felony. Similarly, the law provides sufficient procedural protections to meet the federal Constitution’s procedural due process guarantees, does not violate the Eight Amendment’s prohibition against excessive bail, is not implemented in such a way as to require appointed counsel at the defendant’s initial appearance before a magistrate, and is not preempted. The panel’s reasoning regarding preemption is particularly illuminating because it emphasizes the fact that the sheriff’s deputies trying to determine who is an unauthorized migrant and thus prohibited from receiving bail rely on ICE databases and training to make these determinations.
The Ninth Circuit has conclusively put a stop to this practice. Proposition 100, the court held, violates the substantive due process principles of the Fourteenth Amendment. Relying on the substantive due process analysis set out in United States v. Salerno, 481 U.S. 739 (1987), the court explained that a law can’t impermissible infringe on an arrestees’ liberty interest, nor can it impose punishment prior to trial. Lopez-Valenzuela, No. 11-16487, slip op. at 13-14.
Arizona’s no bail law impermissible infringes on arrestees’ liberty interest because it is not narrowly tailored to serve a compelling state interest. The court acknowledge that Arizona has a compelling state interest in getting people accused of crimes to show up for court dates, but the law is too broad for three reasons. First, there is no evidence in the record that Proposition 100 addresses a particularly acute problem. As the court put it, “the record contains no findings, studies, statistics or other evidence…showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk than lawful residents.” Id. at 21. Second, the state law is “not limited to ‘a specific category of extremely serious offenses.’ Instead, they encompass an exceedingly broad range of offenses, including not only serious offenses but also relatively minor ones….” Id. at 23 (quoting Salerno, 481 U.S. at 750). Third, the no bail law is constitutionally unsound “because it employs an overbroad, irrebuttable presumption rather than an individualized hearing to determine whether a particular arrestee poses an unmanageable flight risk.” Id. at 24.
Similarly, the Arizona law is constitutionally flawed because it imposes punishment prior to trial. It does this, the court reasoned, because it is excessive in relation to its purpose of trying to manage the flight risk posed my unauthorized migrants charged with a wide range of crimes. Because the state failed to show that “unmanageable flight risk posed by undocumented immigrants as a class” is indeed an actual problem, the state’s solution to this fictional problem was necessarily excessive. Moreover, “[e]ven if we assume that a problem exists, Proposition 100 employs a profoundly overbroad irrebuttable presumption, rather than an individualized evaluation, to determine whether an arrestee is an unmanageable flight risk.” Id. at 37.
Arizona’s no bail law, consequently, cannot stand. That alone is reason enough to mark this as an important decision. At least two other states—neither of which sit within the Ninth Circuit’s jurisdiction—have similar laws on the books so there remains the possibility that Lopez-Valenzuela will reverberate elsewhere. Of course, there’s also the possibility of a circuit split. Only time will tell.
[Update (June 1, 2015): The U.S. Supreme Court denied a request to hearing this decision. Justice Thomas wrote a dissent from the denial of certiorari with which Justice Scalia joined. Justice Alito noted his dissent but didn’t explain his position.]
[Update (November 13, 2014): The U.S. Supreme Court denied a request to stay the Ninth Circuit’s order pending a decision on whether to grant cert. Justice Thomas, joined by Justice Scalia, wrote separately to predict that the Court will deny cert., a decision he laments.]
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