In late 2006 Arizona passed Proposition 100, an unprecedented anti-immigrant law that dramatically breaks with the American principles of fairness and justice that have prevailed in this country since its founding. The law forbids judges from considering bail for criminal defendants who are suspected of having "entered or remained in the United States illegally" and applies to most state felony charges in Arizona, including relatively minor crimes such as shoplifting and possessing a phony ID. As a result of Proposition 100, countless individuals are jailed who pose no risk of flight or danger to others.
While Proposition 100 is a blatant effort to single out immigrants for unfair treatment, every American should be wary of laws like Arizona's. Once we let the government trample the fundamental rights of one vulnerable group, the erosion of all of our rights, not to mention our principles, can quickly follow.
On Friday, the American Civil Liberties Union and the Mexican American Legal Defense and Education Fund challenged the law in federal court because it violates the Constitution and unjustly denies a select group of people a fair legal process. The establishment of a two-tiered justice system marks a dangerous departure from the long-established right to a fair legal process, which includes the right of every individual to have his or her case decided on the merits, and not based on membership in a disfavored group.
In implementing Proposition 100, Arizona struck a blow to the cornerstones of our free country: the Constitution's guarantee that every person accused of a crime is presumed to be innocent until proved guilty, and that all individuals undergoing criminal prosecution have the right to a fair and individualized process. For hundreds of years, American courts have recognized that as part of a fair process, an accused person should not be jailed while awaiting trial unless a judge finds that he or she poses a flight risk or danger to the community. Jailing a person unnecessarily and unfairly has a devastating impact on the accused person and has a well-documented negative impact on the person's ability to defend himself or herself against the criminal charges in court.
Proposition 100 also wastes taxpayer money. It requires the state to spend money on the incarceration of people who would otherwise be earning a living and appearing for court appearances as directed. Before Proposition 100, an Arizona state judge already had all the tools needed to protect the community and to make individualized determinations about whether to release a person awaiting trial. As in all state and federal bail proceedings in the United States, Arizona required judges to make individual determinations about whether a person could be released while awaiting trial. A law like Proposition 100 isn't necessary because judges could take relevant information into account - including whether a defendant has significant ties to the local community, whether the accused person has a criminal history, and other information suggesting whether or not the person would be likely to flee or pose a danger.
But Proposition 100 takes judges and fair hearings out of the equation. In just one month and in just one Arizona county, almost 700 criminal defendants were held in jail without any individualized determination by a judge that they deserved to be there. The result has been not only an enormous waste of Arizona taxpayers' money, but also the loss of needed jail space for persons posing actual threats.
Before Proposition 100 was passed, its backers told Arizona voters that undocumented immigrants are more likely to commit crimes. That simply isn't true. As uniformly demonstrated in studies and recently reported in The Arizona Republic, undocumented immigrants in Arizona are no more likely than other people to commit crimes.
But the damage has been done. Proposition 100 is now breaking up countless families by requiring judges to lock up people who would otherwise be released and allowed to return home to take care of their spouses and children - many of whom are U.S. citizens.
Laws like Proposition 100 have no place in a free country. When the government has the power to deny fundamental rights and due process to one vulnerable group of people, it endangers the rights of us all. The true test of a democratic society is in how it treats those perceived as outsiders.