Media Contact

Isabel Alegria, ACLU national 
ACLU of Arizona,

October 15, 2014


San Francisco – The en banc U.S. Court of Appeals for the Ninth Circuit today struck down Proposition 100, an Arizona state constitutional amendment that barred state judges from even considering bail for criminal defendants suspected of being undocumented immigrants. Today’s decision by a 9-2 majority of the en banc panel supersedes an earlier ruling by a three-judge panel of the Court that upheld the controversial Arizona law. The law had been in effect in Arizona since 2006 and was challenged by the ACLU in 2008.

"Today’s ruling vindicates one of our basic American freedoms—the U.S. Constitution's guarantee that every person accused of a crime is presumed to be innocent until proven guilty," said Cecillia Wang, director of the ACLU’s Immigrants’ Rights Project, and lead counsel who argued the case before the Ninth Circuit. "The court has restored to Arizona the fundamental constitutional principle that each person is entitled to an individual hearing in court before they are locked up while awaiting trial.”
Proposition 100 took away the core right of a criminal defendant to have his or her bail request considered during an individual hearing where the state court assesses whether the person is likely to flee. The law applied to most state felony charges in Arizona including relatively minor crimes such as shoplifting and possessing a fake ID. Some offenses affected by the law would carry only a probation sentence if the defendant were ultimately convicted. Because of Proposition 100, countless people have been jailed even though they pose no risk of flight or danger to others, resulting in the unnecessary and costly jailing of people who pose no risk of flight. In fact, when Proposition 100 went into effect, many defendants who had received bail from a state court and who had been appearing for court as directed were suddenly and needlessly thrown into jail.

The ACLU argued that Proposition 100 violated the Due Process Clause because it was excessive and it was motivated by the Arizona legislature’s intent to use pretrial detention to punish undocumented immigrants. Under the U.S. Constitution, pretrial detention cannot be used for purposes of punishment. The court majority held that Prop 100 is unconstitutional because it is a scattershot attempt at addressing flight risk and was not narrowly tailored. Today’s ruling benefits the members of the certified plaintiff class, consisting of all accused persons in Arizona who were subject to Proposition’s 100 blanket no-bail rule. 

“Prop 100 is the latest anti-immigrant Arizona law to be struck down by the federal courts,” said Dan Pochoda, senior counsel with the ACLU of Arizona. “Prop 100 was utilized in conjunction with prosecutorial decisions by the Maricopa County Attorney to bring felony charges that ensured liberty would be denied prior to a finding of guilt and to coerce so-called voluntary deportations. There was no evidence presented to the legislature of a need for this categorical denial of the possibility of release and Arizona already requires that a court determine the risk of flight before granting bail.” 

The Ninth Circuit’s en banc ruling in Lopez-Valenzuela, et al. v. County of Maricopa, et al. can be found here.