Our Right against Imprisonment

By Tanner Bowen

Tanner Bowen is a freshman at the University of Pennsylvania.

It is often an understatement that Arizona is America’s most recent and continual “Laboratory of Democracy.”  As wittily opined by Justice Louis Brandeis, a “Laboratory of Democracy” is used to describe how a “state may, if citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” [1] The Ninth Circuit Court of Appeals has often struck down these laws. Over the summer, it ruled Arizona’s law refusing recipients of Deferred Action for Childhood Arrivals (DACA)--the Obama administration’s policy of allowing immigrants who entered the country while they were young to receive an exemption from deportation-- from obtaining drivers licenses was unconstitutional. [2] The Ninth Circuit has spoken again, and this time they ruled that the infamous Proposition 100 was a violation of the Due Process Clause of the Fourteenth Amendment. [3]

The Lopez-Valenzuela v. Arpaio (2014) case originated after voters in the State of Arizona provided an overwhelming approval for an amendment to the state constitution that would deny immigrants illegally residing in the United States bail if they had previously committed “serious felon[ies]” and if the “proof is evident” to present charges. [4] Plaintiffs Angel Lopez-Valenzuela and Isaac Castro-Armenta sued the state of Arizona after they were charged with state crimes and held in the Maricopa County Jail without the possibility of bail, declaring that this law was not only a violation of the Fourteenth Amendment, but also breaches of the Excessive Bail Clause of the Eighth Amendment and the Supremacy Clause.

Although certain individuals are in fact denied bail on occasion, this decision is rarely made as the requirements for this decision are stringent.  Essentially, if the defendant poses a high flight risk and a threat to the safety of the community, then the opportunity for bail can be precluded.  This was later verified by the US Supreme Court in United States v. Salerno (2001), in which the Court found that pretrial detention of adult arrestees did not violate substantive due process implication so long as the government clearly showed that there would be no way to release the defendant on his or her own recognizance without affecting the welfare of the community. [5] Since then, this standard of due process has been considered in each case dealing with pretrial imprisonment.

In the case of Arizona, Proposition 100 created a system in which immigrants residing within Arizona borders who are convicted of crime will face the dismissal of the right to bail. [6] After defendants are arrested, they can appeal the decision on the grounds of probable cause of the legality of their stay in the United States , but cannot dispute the underlying assumption of Proposition 100 that they undoubtedly pose an unmanageable flight risk.  In the eyes of the Ninth Circuit, Arizona has essentially created a vague law that was not narrowly focused enough to hold up to a strict scrutiny analysis developed under United States v. Salerno (2001).  

However, the general applicability of the law to illegal immigrants who may be charged with crimes of varying degrees or with great flight risks does not demonstrate a categorically tailored methodology of accomplishing the objective of societal safety.  The fact that pretrial imprisonment may pose serious burdens on individuals, such as limiting their ability to provide income for the family, would require Arizona to show that this is one of the only ways to enact a compelling governmental interest.  But it is not.  

The idea that all illegal immigrants also pose flight risks is questionable.  The Ninth Circuit cited numerous statistics and examples showing that many illegal immigrants released for bail do indeed show up for their trial dates.  Although the usage of statistics from the State of Arizona is not necessary to validate a compelling governmental interest, the lack of evidence present in the record and during oral arguments left much doubt in Arizona’s logic in enacting this statute.

This is why the Supreme Court has always viewed that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” [7] The fact that immigrants reside illegally in the United States does not strip away the safeguards that the Constitution developed to ensure each and every individual’s right to due process and a fair trial.

This decision by the Ninth Circuit not only highlights the experimental democracy that is taking place in Arizona, but it also brings attention to the ongoing debate over immigration and the necessity for reform. However, it is not only the states that are divided and taking matters into their own hands.  Indeed, the Ninth Circuit originally ruled in favor of the State of Arizona before other judges on the Circuit voted to hear it en banc.  As for now, the fundamental pre-trial rights in the Constitution still stand, regardless of citizenship status.    

[1] O’Connor, Gonzales v. Raich (O’Connor, J., dissenting), 545 U.S. 1 (U.S. Supreme Court 2005).
[2] TucsonSentinel.com, “Appeals Court: Give Driver’s Licenses to Deferred Action Recipients,” Text, TucsonSentinel.com, accessed March 17, 2015, http://www.tucsonsentinel.com/local/report/070714_daca_licenses/.
[3] “Court Rejects Arizona’s No-Bail Law for Immigrants in U.S. Illegally,” Los Angeles Times, accessed March 17, 2015, http://www.latimes.com/nation/nationnow/la-na-nn-federal-appeals-panel-tosses-prop-100-20141015-story.html.
[4] “Lopez-Valenzuela v. Arpaio,” The Recorder, accessed March 17, 2015, http://www.therecorder.com/id=1202673484909/LopezValenzuela-v-Arpaio.
[5] “United States v. Salerno | Casebriefs,” accessed March 17, 2015, http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-israel/pretrial-release/united-states-v-salerno-2/.
[6] “Court Rejects Arizona’s No-Bail Law for Immigrants in U.S. Illegally.”
[7] “United States v. Salerno | Casebriefs.”
Photo credit: Flickr user Randy Heinitz