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Appeals Court Mulls Constitutionality of Arizona Bail Ban

Photo by Diane Cook and Len Jenshel,

An attorney for the American Civil Liberties Union asked a federal appeals court Tuesday to void a state constitutional provision denying bail to some people awaiting trial who are in this country illegally. Arizona Public Radio’s Howard Fischer reports.

Attorney Tim Casey, defending the law for Maricopa County, told the 9th Circuit Court of Appeals the lawmakers who proposed the measure, and the voters who approved it in 2006, were entitled to conclude those not in this country legally should be kept in jail pending trial because they are more likely a flight risk. Judge Alex Kozinski said that made some sense.

“They are here illegally. The border in Arizona is very close. Depending on where you are in Arizona it could be right across the street, right?” Kozinski asked.

But, Judge Marsha Berzon told Casey that does not merit a blanket rule.

“There are people who were brought here as children and have been here for 50 years and don’t know a soul in Mexico. And, you’re still applying this to them,” Berzon said.

And, Casey admitted he had no empirical evidence that those in the country illegally are less likely to show up for trial than anyone else. But, he told Berzon that, legally speaking, the legislature could decide that, in the interest of ensuring people show up for trial, no one should be allowed bail.

“Theoretically, under your hypothetical, a legislature could do that. I’m not arguing that they should do that. I don’t think they should do that,” Casey said.

It could take months for the court to rule.

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