U.S. Supreme Court Declines to Review Order Finding Restrictive Bail Provision Unconstitutional

The U.S. Supreme Court reached an important decision last summer in a challenge to a state constitutional amendment barring certain individuals from obtaining bail. The decision did not receive much media attention because the court simply declined to hear the case. This allowed the appellate court ruling, which struck down the amendment, to stand. Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014). The constitutional amendment in question was from Arizona, and therefore it had no direct impact on Texas. It raised important issues, however, regarding bail and due process that apply nationwide. The Supreme Court’s denial of certiorari drew a written dissent from three of the court’s conservative justices, Justices Alito, Scalia, and Thomas. County of Maricopa v. Lopez-Valenzuela, 575 U.S. ___, 135 S.Ct. 2046 (2015).

The amendment to Arizona’s constitution, Proposition 100, prohibited “granting undocumented immigrants arrested for a wide range of felony offenses any form of bail or pretrial release.” Lopez-Valenzuela, 770 F.3d at 775. Courts are given broad discretion in determining whether, and in what amount, to grant bail. The Eighth Amendment to the U.S. Constitution prohibits “excessive bail,” but it does not require courts to grant bail in all cases. Bail itself was not the issue in this case, but rather the limitation of bail to a specific group of people based on their actual or perceived national origin.

The Fifth and Fourteenth Amendments state that a person may not “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V; see also U.S. Const. amend. XIV, § 1. While the Fifth Amendment was generally understood to apply only to the federal government, the Fourteenth Amendment expressly extended this protection of individual rights to the states.

Voters in Arizona approved Proposition 100 in November 2006 by a wide margin. The measure amended the state constitution to prohibit bail for people charged with “serious felony offenses…if the person charged has entered or remained in the United States illegally,” provided that sufficient proof exists as to the charged felony. Ariz. Const. Art. 2, § 22(A)(4). This bail determination must be made within 24 hours of the person’s arrest, although the person may challenge a finding of unlawful immigration status at a later hearing. See 770 F.3d at 775. Texas has no comparable provision, although both states prohibit bail in certain situations, such as for capital offenses and offenses committed while on bail for another offense. See Tex. Const. art. 1, §§ 1111c.

Two individuals who were being held without bail under Proposition 100 filed a class action lawsuit against Maricopa County and various officials in 2008. A three-judge panel of the Ninth Circuit, voting 2-1, affirmed the trial court’s dismissal of the case. 719 F.3d 1054 (9th Cir. 2013). After an en banc rehearing in 2014, however, the court reversed the lower court and held “that Proposition 100 is facially unconstitutional,” 770 F.3d at 798, with three dissenters. The key issue for the court was the proposition’s use of an individual’s alleged immigration status to make a bail determination, rather than a more relevant factor like flight risk. The court noted that Proposition 100 prohibits bail “even when the state concedes that the arrestee does not pose a flight risk.” Id. at 785.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified federal crimes attorney, represents defendants in state and federal criminal cases in west Texas courts. To schedule a confidential consultation with a knowledgeable and experienced advocate for criminal justice, contact us online or at (432) 687-5157 today.

More Blog Posts:

Enforcing Criminal Indictments Across State and International Borders, Texas Criminal Lawyer Blog, December 23, 2015

Supreme Court Reverses Conviction for Threats Made on Facebook, Finding Statute Requires Intent to Intimidate, Texas Criminal Lawyer Blog, September 9, 2015

Baltimore Protests Raise Questions About Excessive Bail, Eighth Amendment Protections, Texas Criminal Lawyer Blog, May 4, 2015


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