Opinion: Immigrants in U.S. illegally should not automatically be denied bail

The Supreme Court today made a smart call in rejecting the appeal of an odious Arizona law trumping the established legal principle that bail for those charged with criminal offenses should be based on risk of flight and threat to the community.

The case grew out of Arizona’s 2006 constitutional amendment approved in a voter referendum that denied bail for people living in the U.S. illegally, who have been charged in Arizona with a serious felony. The 9th Circuit Court of Appeals ruled last year that the law was unconstitutional.

In essence, according to a court summary of the opinion, the judges ruled the law was “a scattershot attempt at addressing flight risk” and that the blanket denial of bail was “excessive in relation to the state’s legitimate interest in assuring arrestees’ presence for trial.”

The law, at heart, was an attempt to further punish those living here illegally by denying a constitutional right to which all in the United States are entitled, regardless of citizenship status: due process.

As a practical matter, prosecutors began using the “no bail” law to pressure those without legal status to agree to plea deals to avoid the indefinite detention of awaiting trial - whether or not the person was guilty of the crime.

It makes sense for judges, when weighing whether to grant an accused person bail, to consider the likelihood that the person will show up for court dates, and whether the person is a risk to public safety. But it is a perversion of justice to automatically detain someone accused of a crime, who otherwise might qualify for bail, based on the person’s legal status in the country.

Especially when you factor in that most people here illegally have been here for years, with settled roots in communities. The nationwide median length of residency for adults living here illegally is just under 13 years, according to the Pew Research Center. And the Migration Policy Institute estimates that in Arizona, about two in five immigrants in the country illegally are part of a family.

The solution to all of these problems is not for states like Arizona to strike out on their own with laws targeting illegal immigration. The solution is a new, more sensible and realistic approach to immigration. The courts should continue to block these piecemeal actions, and Congress should take on the immigration overhaul that it has left languishing for far too long.

Follow Scott Martelle on Twitter @smartelle.