County Attorney Appeals to Supreme Court on Prop. 100

New Study Shows 94% of Illegal Immigrants Are Given Bail or Released

The County Attorney’s Office filed today a special action with the Arizona Supreme Court seeking to bring Maricopa County courts into compliance with Proposition 100.  County Attorney Andrew Thomas also announced that a new study by his office of 699 cases that fall under Proposition 100 found that 94 percent of illegal immigrants accused of serious felonies in Maricopa County were offered bail or simply released on their own recognizance by county judicial officers.

Approved by 78 percent of Arizona voters in 2006, Proposition 100 amended Article II, § 22 of the Arizona Constitution to provide that a person charged with any serious felony offense is not eligible for bail “if the person has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.”  The special action alleges that Barbara L. Spencer, a Maricopa County Superior Court Commissioner, abused her discretion by offering bail to defendant Manuel Bastidas-Sanchez, despite sufficient evidence that the defendant had committed at least one serious felony offense and entered or remained in the United States illegally.  Bastidas-Sanchez admitted to holding persons in his house at gunpoint and further admitted paying to be smuggled into the United States.  He is charged with seven counts of kidnapping and seven counts of Extortion, all class 2 felonies; and one count of misconduct involving weapons, a class 4 felony.  All of the charged crimes are “serious offenses” as defined in A.R.S. §13-3961(A)(5).

“I was stunned to learn yesterday that fully 94 percent of illegal immigrants accused of serious felonies are being given bail or released onto our streets,” Thomas said.  “The judiciary of Maricopa County is openly defying the will of the people and creating a crisis of public safety.  It is only a matter of time before illegal immigrants wrongly released by these judicial officers commit additional crimes, including violent crimes.”

Thomas added, “I call upon the governor, the legislature and the Supreme Court to intervene promptly and decisively so that Prop 100 can finally be enforced.”

Attached to the special action, and released to the press, was a detailed, defendant-by-defendant analysis of Proposition 100 cases handled through May 2007 by the Maricopa County Superior Court.  This survey of 699 cases showed that only 6 percent of illegal immigrants were denied bail.  Many were released without even being required to post bail.  A previous analysis by the County Attorney’s Office of 185 cases, conducted approximately one month ago, found that 14.5 percent of illegal immigrants were denied bail.

The special action seeks to reverse the lower court’s decision granting bail.  Since the case raises serious issues of statewide importance involving recent changes to the law, the County Attorney’s Office requested oral argument before the Supreme Court.

In a separate but related matter, the County Attorney’s Office filed a comment with the Arizona Supreme Court seeking amendments to the Rules of Criminal Procedure relating to Proposition 100.  The comment details many concerns about the enforcement to date of Proposition 100 and the onerous burden on prosecuting agencies which would be created by the proposed rules.  Senior court staff submitted these amendments for the high court’s consideration in seeking to resolve implementation issues related to Proposition 100.

The County Attorney’s comment regarding the proposed rule changes criticizes the proposed application of the evidentiary standard of “proof evident or presumption great” as to the question of whether or not a suspect is in the country illegally.  As an alternative, the County Attorney recommends that the evidentiary standard of probable cause be used—the standard of proof that has long been used in Arizona to detain persons for extended periods of time.  The Arizona Prosecuting Attorney’s Advisory Council also filed a comment recommending the standard of probable cause rather than the increased burden of proof required by the proposal.

The County Attorney’s Office also is working with the Legislature to ensure full enforcement of Proposition 100.  The House of Representatives has approved a measure that would make probable cause the burden of proof in Simpson hearings held for illegal immigrants accused of serious felonies.  Accused persons are still protected by the higher burden of proof required to prove the elements of the crime charged whenever bail is denied, so the probable cause standard to prove illegal entry does not deprive anyone of a constitutional right.  The County Attorney’s Office supports this legislation.

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