In November 2006, Arizona voters approved a ballot measure titled “Proposition 100,” which amended the bail provision of the Arizona Constitution to create a blanket no-bail scheme for undocumented persons charged with certain felonies in Arizona. The original bail provision of the Arizona Constitution stated that all persons charged with criminal offenses shall be eligible for bail, with specific enumerated exceptions. Proposition 100 changed the state constitution to deny bail for felony offenses if the person being charged “entered or remained in the United States illegally,” and the proof is evident or the presumption is great that the individual has committed the crime they are accused of.
In April 2008, MALDEF, the ACLU, and Perkins Coie Brown and Bain filed a class-action lawsuit challenging the Proposition 100 laws against Maricopa County, the Maricopa County Attorney, the Maricopa County Sheriff, and the Chief Judge of the Maricopa County Courts in the U.S. District Court for the District of Arizona.
MALDEF’s complaint alleges that the Proposition 100 laws violate the U.S. Constitution in numerous respects. By making persons charged with certain felonies who have “entered or remained in the United States illegally” categorically ineligible for bail, the Proposition 100 laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution, the Excessive Bail Clause of the Eighth Amendment, the Fifth Amendment prohibition against compelled self-incrimination, and the Sixth Amendment right to counsel. MALDEF also argues that because the Proposition 100 laws require Arizona state courts to make determinations as to past and present immigration status, they should be struck down as unconstitutional under the Supremacy Clause of the U.S. Constitution.
The case has been assigned to U.S. District Court Judge Susan Ritchie Bolton. Oral argument on all pending motions was heard by Judge Bolton on July 23, 2008. MALDEF argued the Motion for Class Certification. Following oral argument, Judge Bolton took all matters under submission.
The lawsuit represents the fundamental principle that all persons are granted basic inalienable rights under the U.S. Constitution, whether they are citizens or not.