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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGEL LOPEZ-VALENZUELA and ISAAC CASTRO-ARMENTA, Plaintiffs-Appellants, No. 11-16487 v. MARICOPA COUNTY, et al. Defendants-Appellees

PLAINTIFFS-APPELLANTS MOTION FOR LEAVE TO FILE CORRECTED BRIEF OF APPELLANTS Plaintiffs-Appellants, by and through undersigned counsel, respectfully request leave to file a corrected opening brief. Plaintiffs original opening brief was filed on October 26, 2011. The proposed Corrected Brief of Appellants (lodged herewith), differs from the brief filed on October 26, 2011, in three respects: 1. It includes a Statement of Related Cases, as required under

Ninth Circuit Rule 28-2.6. 2. It corrects the Certificate of Compliance to include the exact

word count for the brief. 3. It adds the following words (indicated by underlining) to the

Conclusion section at page 65:

1

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For the foregoing reasons, the district courts order granting summary judgment for Defendants and denying summary judgment for Plaintiffs, and the order granting Defendants motion to dismiss Plaintiffs federal preemption claim, should be reversed. This correction is necessary because the original Conclusion section contains an incomplete description of the district courts order of March 29, 2011. Plaintiffs-Appellants wish to clarify that they are seeking reversal of the entire district court order encompassing rulings on both Plaintiffs and Defendants summary judgment motions (as well as the district courts December 9, 2008, order dismissing Plaintiffs Supremacy Clause claim). Defendant-Appellee Maricopa County Attorney does not oppose this motion. See Decl. of Cecillia D. Wang (filed herewith). As of the filing of the instant motion, Plaintiffs-Appellants have not been able to reach Defendants-Appellees Maricopa County and Maricopa County Sheriff. Id. Dated: October 28, 2011 /s/ Cecillia D. Wang CECILLIA D. WANG AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0775 Counsel for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 28, 2011. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. I declare under penalty of perjury that the above is true and correct.

Dated:

October 28, 2011 San Francisco, California

/s/ Cecillia D. Wang CECILLIA D. WANG

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGEL LOPEZ-VALENZUELA and ISAAC CASTRO-ARMENTA, Plaintiffs-Appellants, No. 11-16487 v. MARICOPA COUNTY, et al. Defendants-Appellees

DECLARATION OF CECILLIA D. WANG IN SUPPORT OF MOTION FOR LEAVE TO FILE CORRECTED BRIEF OF APPELLANTS CECILLIA D. WANG declares as follows: 1. On October 28, 2011, I contacted counsel for Defendants-

Appellants by e-mail to advise them of my intention to file a motion for leave to file a corrected opening brief for Plaintiffs-Appellants. In my email, I set forth the differences between the opening brief filed on October 26, 2011, and the proposed corrected brief. 2. Bruce White, counsel for the Maricopa County Attorney,

advised me by reply e-mail that he does not oppose the motion.

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3.

As of the filing of this declaration, I have not yet received a

response from Timothy Casey, counsel for Maricopa County and the Maricopa County Sheriff. I declare under penalty of perjury that the foregoing is true and accurate. Dated: October 28, 2011 San Francisco, California

/s/ Cecillia D. Wang CECILLIA D. WANG

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on September 8, 2011. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. I declare under penalty of perjury that the above is true and correct.

Dated:

October 28, 2011 San Francisco, California

/s/ Cecillia D. Wang CECILLIA D. WANG

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No. 11-16487

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANGEL LOPEZ-VALENZUELA and ISAAC CASTRO-ARMENTA, Plaintiffs-Appellants, v. MARICOPA COUNTY, et al. Defendants-Appellees On Appeal from the United States District Court for the District of Arizona No. 2:08-CV-00660-SRB CORRECTED BRIEF OF APPELLANTS

Andre I. Segura Esha Bhandari AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 125 Broad Street, 18th Fl. New York, NY 10004 Telephone: (212) 549-2676 Facsimile: (212) 549-2654

Cecillia D. Wang Kenneth J. Sugarman AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 Daniel Pochoda ACLU FOUNDATION OF ARIZONA 3707 N. 7 th Street, Ste. 235 Phoenix, AZ 85014 Telephone: (602) 650-1967 Facsimile: (602) 650-1376

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CORPORATE DISCLOSURE STATEMENT

No Plaintiff is a corporation.

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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ..........................................................i TABLE OF AUTHORITIES ....................................................................................iv PRELIMINARY STATEMENT ...............................................................................1 JURISDICTIONAL STATEMENT ..........................................................................2 STATEMENT OF THE ISSUES...............................................................................2 STATEMENT OF THE CASE..................................................................................4 I. II. I. II. II. III. IV. V. VI. Nature of the Case ......................................................................................4 Proceedings and Disposition Below...........................................................7 Introduction ................................................................................................9 The Arizona Bail Scheme Applicable To Unauthorized Immigrants Prior To Proposition 100.......................................................10 The Arizona Bail Scheme Applicable To Unauthorized Immigrants Prior To Proposition 100.......................................................10 Legislative History of the Proposition 100 Laws.....................................11 The Legislature Broadly Defines Serious Felony Offense ...................15 The Legislature Sets A Probable Cause Standard For The Determination Of Immigration Status......................................................17 Maricopa County Implements Proposition 100 Through Policies and Practices Causing Unfair And Error-Prone Proceedings...............................................................................................19

STATEMENT OF THE FACTS ...............................................................................9

SUMMARY OF THE ARGUMENT ......................................................................21 STANDARD OF REVIEW .....................................................................................24 ARGUMENT ...........................................................................................................25 I. PROPOSITION 100 VIOLATES SUBSTANTIVE DUE PROCESS.................................................................................................25 A. PROPOSITION 100 VIOLATES DUE PROCESS BECAUSE IT IMPERMISSIBLY IMPOSES PRETRIAL DETENTION AS PUNISHMENT............................25

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B.

PROPOSITION 100 VIOLATES DUE PROCESS BECAUSE IT IMPOSES DETENTION WITHOUT INDIVIDUALIZED DETERMINATIONS RELATING TO FLIGHT RISK ....................................................33

II. III.

Proposition 100 Violates The Eighth Amendment Excessive Bail Clause Because It Is Unreasonable And Arbitrary...........................42 THE PROPOSITION 100 LAWS, AND DEFENDANTS POLICIES IMPLEMENTING THEM, VIOLATE PROCEDURAL DUE PROCESS............................................................43 A. B. Use of the Probable Cause Standard To Determine Immigration Status Violates Procedural Due Process ...................44 Defendants Policies and Practices Implementing Proposition 100 Violate Procedural Due Process ..........................47

IV.

MARICOPA COUNTYS PROHIBITION OF APPOINTED COUNSEL VIOLATES THE SIXTH AMENDMENT ........................................................................................51 The Proposition 100 Laws Are Preempted By Federal Immigration Law ......................................................................................55 A. B. C. Proposition 100 Is A Preempted State Regulation Of Immigration....................................................................................57 Proposition 100 Intrudes On A Field Exclusively Occupied By Federal Law..............................................................61 The Proposition 100 Laws Conflict With Federal Law .................63

V.

CONCLUSION........................................................................................................65 STATEMENT OF RELATED CASES ...................................................................66 CERTIFICATE OF COMPLIANCE.......................................................................67 CERTIFICATE OF SERVICE ................................................................................68 ADDENDUM ..........................................................................................................69

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TABLE OF AUTHORITIES CASES Addington v. Texas, 441 U.S. 418 (1979)................................................................44 Arizona v. Roberson, 486 U.S. 675 (1988)..............................................................54 Augustus v. Roemer, 771 F. Supp. 1458 (E.D. La. 1991)............................39, 40, 43 Bandy v. United States, 81 S. Ct. 197 (1960) ..........................................................34 Bell v. Wolfish, 441 U.S. 520 (1979) ...........................................................26, 31, 34 Brinegar v. United States, 338 U.S. 160 (1949) ......................................................45 Carey v. Piphus, 435 U.S. 247 (1978) ...............................................................43, 51 Castro-O'Ryan v. U.S. Dept of Immigration and Naturalization, 847 F.2d 1307 (9th Cir.1988)................................................45, 64 Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011)....................................................................................................................59 City of Hazleton, Pa. v. Lozano, 131 S. Ct. 2958 (2011) ........................................59 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974)........................................36 Coleman v. Alabama, 399 U.S. 1 (1970) ...........................................................52, 53 County of Riverside v. McLaughlin, 500 U.S. 44 (1991) ........................................46 Cousins v. Lockyer, 568 F.3d 1063 (9th Cir. 2009).................................................24 Crosby v. Natl Foreign Trade Council, 530 U.S. 363 (2000)..............................................................................................................55, 56 DeCanas v. Bica, 424 U.S. 351 (1976).............................................................passim Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004)...................................................31 Demore v. Kim, 538 U.S. 510 (2003) ................................................................40, 41 Doe v. Otte, 248 F.3d 832 (9th Cir. 2001), revd on other grounds sub nom. Smith v. Doe, 538 U.S. 84 (2003) ...........................................32 English v. Gen. Elec. Co., 496 U.S. 72 (1990) ........................................................62 Equal Access Educ. v. Merten, 305 F. Supp.2d 585 (E.D. Va. 2004) ..............................................................................................................60 Escandar v. Ferguson, 441 F. Supp. 53 (S.D. Fla. 1977)........................................38 Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976).............................................................................................................28
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Fong Yue Ting v. United States, 149 U.S. 698 (1893).............................................56 Foucha v. Louisiana, 504 U.S. 85 (1992)..........................................................37, 47 Galen v. County of Los Angeles, 477 F.3d 652 (9th Cir. 2007) .....................................................................................................................42 Gerstein v. Pugh, 420 U.S. 103 (1975)..................................................45, 46, 52, 53 Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983).......................................63 Graham v. Richardson, 403 U.S. 365 (1971) ..........................................................58 Greene v. McElroy, 360 U.S. 474 (1959) ................................................................50 Gusick v. Boies, 233 P.2d 446 (Ariz. 1951).............................................................11 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..........................................................44, 50 Herman & MacLean v. Huddleston, 459 U.S. 375 (1983) ......................................45 Hernandez v. Lynch, 167 P.3d 1264 (Ariz. Ct. App. 2007). ................................................................................................................5, 40 Higazy v. Templeton, 505 F.3d 161 (2d Cir. 2007) .................................................52 Hines v. Davidowitz, 312 U.S. 52 (1941) ..........................................................55, 59 Hispanic Interest Coalition of Ala. v. Bentley, No. 5:11cv-02484-SLB (N.D. Ala. Sept. 28, 2011)...........................................................60 Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) .....................................................................................................................63 Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) .........................................................53 Hudson v. Parker, 156 U.S. 277 (1895). .................................................................35 Huihui v. Shimoda, 644 P.2d 968 (Haw. 1982) .................................................39, 43 Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981) .....................................................38, 40 Illinois v. Gates, 462 U.S. 213 (1983) .....................................................................45 In re Newchurch, 807 F.2d 404 (5th Cir. 1986) ......................................................30 In re West, 88 N.W. 88 (N.D. 1901) ........................................................................40 In re Winship, 397 U.S. 358 (1970) ...................................................................44, 47 Jackson v. Indiana, 406 U.S. 715 (1972).................................................................37 Kansas v. Crane, 534 U.S. 407 (2002) ....................................................................37 Kansas v. Hendricks, 521 U.S. 346 (1997)..............................................................37

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Karuk Tribe of Cal. v. U.S. Forest Serv., 640 F.3d 979 (9th Cir. 2011) ......................................................................................................24 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) .............................................31 Kirby v. Illinois,, 406 U.S. 682 (1972) ....................................................................52 League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) ............................................................................59, 60 Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010)........................................58 Maryland v. Shatzer, 130 S. Ct. 1213 (2010) ..........................................................54 Massiah v. United States, 377 U.S. 201 (1964).......................................................54 Mathews v. Diaz, 426 U.S. 67 (1976) ......................................................................59 Mathews v. Eldridge, 424 U.S. 319 (1976) .............................................................51 Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989) ....................................................53 Murphy v. Hunt, 455 U.S. 478 (1982) .....................................................................38 Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) ..........................................41 Nyquist v. Mauclet, 432 U.S. 1 (1977).....................................................................59 Padilla v. Kentucky, 130 S. Ct. 1473 (2010) ...........................................................64 Plyler v. Doe, 457 U.S. 202 (1982)..........................................................................59 Redev. Agency of City of Stockton v. BNSF Ry. Co., 643 F.3d 668 (9th Cir. 2011) .................................................................................24, 32 Rendel v. Mummert, 474 P.2d 824 (Ariz. 1970) ......................................................11 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ...........................................62 Rothgery v. Gillespie County, 554 U.S. 191 (2008) ................................................52 Santosky v. Kramer, 455 U.S. 745 (1982) .........................................................44, 47 Schall v. Martin, 467 U.S. 253 (1984)..............................................................passim Schilb v. Kuebel, 404 U.S. 357 (1971).....................................................................34 Schneiderman v. United States, 320 U.S. 118 (1943) .............................................47 Scott v. Ryan, 548 P.2d 235 (Ut. 1976)....................................................................41 Sea River Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662 (9th Cir. 2002) .................................................................................24, 32 Segura v. Cunanan, 196 P.3d 831 (Ariz. Ct. App. 2008)..................................18, 49

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Simpson v. Owens, 85 P.3d 478 (Ariz. Ct. App. 2004) .....................................18, 41 Stack v. Boyle, 342 U.S. 1 (1951) ......................................................................35, 42 Stanley v. Illinois, 405 U.S. 645 (1972)...................................................................36 State v. Arthur, 390 So.2d 717 (Fla. 1980) ........................................................40, 41 State v. Donahoe ex rel. County of Maricopa, 203 P.3d 1186 (Ariz. Ct. App. 2009)...................................................................................11 State v. Furgal, 13 A.3d 272 (N.H. 2010) ...............................................................40 Takahashi v. Fish & Game Commn, 334 U.S. 410 (1948)....................................................................................................................56 Toll v. Moreno, 458 U.S. 1 (1982)...........................................................................58 Truax v. Raich, 239 U.S. 33 (1915) .........................................................................56 United States v. Bohn, 890 F.2d 1079 (9th Cir. 1989).............................................53 United States v. Hayes, 231 F.3d 663 (9th Cir. 2000) .............................................52 United States v. Kennedy, 618 F.2d 557 (9th Cir. 1980) .........................................40 United States v. Leonti, 326 F.3d 1111 (9th Cir. 2003)...........................................52 United States v. Montalvo-Murillo, 495 U.S. 711 (1990) .......................................34 United States v. Moore, 607 F. Supp. 489 (N.D. Cal. 1985) .....................................................................................................................43 United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985)...............................30, 46 United States v. Portes, 786 F.2d 758 (7th Cir. 1985).............................................43 United States v. Salerno, 481 U.S. 739 (1987) .................................................passim United States v. Scott, 450 F.3d 863 (9th Cir. 2006) ...............................................37 United States v. Wade, 388 U.S. 218 (1967) ...........................................................53 United Steel Workers v. Phelps Dodge Corp., 865 F.2d 1539 (9th Cir. 1989) .............................................................................................28 Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002) .....................................................28 Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp.2d 835 (N.D. Tex. 2010) .........................................................59 Woodby v. INS, 385 U.S. 276 (1966).................................................................44, 47 Zadvydas v. Davis, 533 U.S. 678 (2001) ...........................................................41, 43

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FEDERAL STATUTES AND CONSTITUTION 18 U.S.C. 3142(d) .......................................................................................... 61, 63 28 U.S.C. 1291........................................................................................................2 28 U.S.C. 1331........................................................................................................2 28 U.S.C. 2241........................................................................................................2 28 U.S.C. 2253(a) ...................................................................................................2 8 U.S.C. 1226........................................................................................................61 8 U.S.C. 1227........................................................................................................61 8 U.S.C. 1229a ......................................................................................................61 8 U.S.C. 1231........................................................................................................61 8 U.S.C. 1325........................................................................................................61 8 U.S.C. 1326........................................................................................................61 8 U.S.C. 1357(a)(2)...............................................................................................61 8 U.S.C. 1357(d) ...................................................................................................61 8 U.S.C. 1357(g) ...................................................................................................61 U.S. Const. art. I, 8, cl. 3.......................................................................................56 U.S. Const. art. I, 8, cl. 4.......................................................................................56 STATE STATUTES AND CONSTITUTIONS A.R.S. 13-2319......................................................................................................54 A.R.S. 13-2323......................................................................................................54 A.R.S. 13-3961(A)(5) .............................................................................................3 A.R.S. 13-3961(A)(5)(a)(iv)-(vi)..........................................................................60 A.R.S. 13-3967(B) ................................................................................................10 A.R.S. 13-3967(D) ................................................................................................11 A.R.S. 13-706(F)(1) ..............................................................................................17 A.R.S. 3961(A)(5)(b) ..............................................................................................5 Ariz. Const. art. II, 22(A)......................................................................................10 Ariz. Const. art. II, 22(A)(3) ...................................................................................3

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Ariz. Const. art. II, 22(A)(4) ............................................................................ 5, 47 Ariz. Laws 2006, Ch. 380, 3 (codified at A.R.S. 13-3961(A)(5)(b)) ................16 Ariz. Laws 2006, Ch. 380, 4 (codified at A.R.S. 13-3967(B)(11), (12)) ..........11 Ariz. Laws 2007, Ch. 289, 2 (amending A.R.S. 13-3961) ................................19 Ariz. Laws 2007, Ch. 289, 2 (codified at A.R.S. 13-3961(5)) ............................6 Ariz. Laws 2007, Ch. 289, 2 (codified at A.R.S. 13-3961(A)(5)(a)) ................19 Ariz. R. Crim. P. 7.2(b)..............................................................................................6 OTHER AUTHORITIES S. Rep. No. 98-225...................................................................................................26

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PRELIMINARY STATEMENT Under a 2006 amendment to the Arizona state constitution, criminal defendants who are deemed to have entered or remained illegally in the United States are held categorically ineligible for any form of pretrial release. This extreme bail provision, known as Proposition 100, is unprecedented in American law. It holds accused persons in pretrial detention without any individualized determination of flight risk. Indeed, it strips state courts of their power to set bail even when they would find that a defendant poses no flight risk. Proposition 100 and its implementing statutes (collectively, the Proposition 100 laws) violate the Due Process Clause because (1) they mandate pretrial detention to punish and to deter illegal immigration; and (2) they forbid any individualized determination of flight risk by state courts. The Proposition 100 laws also are preempted by federal law, as they impermissibly regulate immigration, intrude into fields exclusively occupied by congressional enactments, and conflict with federal immigration laws. But even if they were not unconstitutional on their face, the Proposition 100 laws, and Defendants-Appellees policies and practices implementing them in Maricopa County, violate procedural due process because they deprive defendants of a meaningful opportunity to contest the

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accusation that they are illegal immigrants. And Maricopa Countys policy forbidding appointed counsel at the initial determination of noneligibility for bail under Proposition 100 independently violates the Sixth Amendment. The district courts order upholding the Proposition 100 laws was erroneous and should be reversed.

JURISDICTIONAL STATEMENT The district court had subject matter jurisdiction over Plaintiffs claims arising under 42 U.S.C. 1983 and the U.S. Constitution pursuant to 28 U.S.C. 1331 (federal question) and 28 U.S.C. 2241 (habeas corpus). The court of appeals has jurisdiction over this appeal under 28 U.S.C. 1291 and 28 U.S.C. 2253(a). The district courts final judgment disposing of all claims in the case was entered May 13, 2011. Excerpts of Record (ER) 1. Plaintiffs filed a timely notice of appeal on June 10, 2011. ER 44.

STATEMENT OF THE ISSUES Proposition 100 amended the Arizona state constitution so that it prohibits pretrial release when a state court finds probable cause to believe

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that the defendant has entered or remained in the United States illegally and the proof is evident or the presumption great that the defendant has committed any one of hundreds of offenses classified as Class 1 through 4 felonies under Arizona law. Ariz. Const. art. II, 22(A)(3); A.R.S. 133961(A)(5). The questions presented on this appeal are: 1. Does Proposition 100 impermissibly impose pretrial

incarceration as punishment, rather than address any legitimate state interest relating to flight risk, in violation of the Due Process Clause? 2. Does Proposition 100 violate due process because it imposes

pretrial detention without any individualized determination of flight risk? 3. Is Proposition 100s categorical bail prohibition arbitrary and

unreasonable, in violation of the Excessive Bail Clause of the Eighth Amendment? 4. Does Proposition 100s statutory probable cause standard for

determining immigration status violate due process because that standard is improperly applied to a complex mixed question of fact and federal law and a persons physical liberty is at stake? 5. Do Defendants policies and practices implementing the

Proposition 100 laws in Maricopa County deprive persons of their due

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process right to a meaningful opportunity to rebut the states accusation that they are illegal immigrants? 6. Does Maricopa Countys policy prohibiting appointed counsel

at initial appearanceswhere prosecutors and law enforcement officers may present evidence and arguments as to non-eligibility for bail under Proposition 100violate the Sixth Amendment right to counsel? 7. Is a state law mandating detention based on alleged violation of

federal immigration laws preempted by federal law, where Congress has enacted a comprehensive statutory scheme setting penalties for immigration violations and governing immigration detention?

STATEMENT OF THE CASE I. Nature of the Case In 2006, the Arizona state constitution was amended by a voter referendum known as Proposition 100 to provide that [a]ll persons charged with crime shall be bailable by sufficient sureties, except:[f]or serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident

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or the presumption great as to the present charge.1 Ariz. Const. art. II, 22(A)(4). In a separate enactment, the legislature defined serious felony offense as any class 1, 2, 3 or 4 felony or [aggravated driving-under-theinfluence], A.R.S. 3961(A)(5)(b)a definition that encompasses hundreds of Arizona criminal offenses including non-violent crimes such as shoplifting. Proposition 100 is unprecedented in American law. It categorically mandates the pretrial incarceration of every criminal defendant who is believed to have entered or remained in the United States illegally if the proof is evident or the presumption great that he has violated any one of a wide range of state criminal statutes. Proposition 100 therefore results in mandatory pretrial detention without any individualized determination that detention is necessary to serve a legitimate state interest. Proposition 100 forbids pretrial release even when a state court would find that the defendant poses no flight risk. As set forth below, such a law is punitive, excessive, and arbitrary and therefore violates the Due Process Clause and the Eighth Amendments Excessive Bail Clause.

Although Proposition 100s text plainly encompasses persons who currently have legal immigration status (and naturalized U.S. citizens) who at one time enteredillegally, an Arizona court has construed the law to apply only to persons currently without lawful status. Hernandez v. Lynch, 167 P.3d 1264, 1268 (Ariz. Ct. App. 2007).
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Following Proposition 100s passage, the Arizona legislature resolved a disputed question as to the standard of proof for the determination of immigration status, providing that the prosecution must show only probable cause to believe that the person has entered or remained in the United States illegally. Ariz. Laws 2007, Ch. 289, 2 (codified at A.R.S. 13-3961(5)); see also Ariz. R. Crim. P. 7.2(b). This legislation was intended to force courts to accept a lesser showing of illegal presence than they had been requiring. The implementation of the probable cause standardwhich resulted from lobbying by the Maricopa County Attorneycaused the prosecutions success rate under Proposition 100 to increase from approximately 6% to 100%. As set forth below, the probable cause standard violates procedural due process. Compounding the constitutional defects in the Proposition 100 laws, Defendants have instituted policies and practices that independently violate the U.S. Constitution. For example, under Maricopa Countys policy, appointed counsel are forbidden at initial appearances where nonbondability determinations are made, though prosecutors and sheriffs deputies may be present to make the states case. Sheriffs deputies interrogate arrestees about their immigration status without advising them of the potential consequences. Deputies convey their determinations of

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immigration status to the court through a list of docket numbers on a Post-It note. As a result of Defendants policies and practices, non-bondability determinations in Maricopa County are exceedingly error-prone. Defendants policies and practices violate the Due Process Clause.

II.

Proceedings and Disposition Below On April 4, 2008, Plaintiffs Angel Lopez-Valenzuela and Isaac

Castro-Armenta filed a combined class action complaint and habeas corpus petition to challenge the Proposition 100 laws. ER 590. Count One of the Complaint alleged that the Proposition 100 laws violate substantive due process. Count Two alleged that the probable cause standard for determination of a defendants immigration status violates procedural due process. Count Three alleged that Defendants policies and practices implementing the Proposition 100 laws in Maricopa County violate procedural due process by denying Plaintiffs a fair opportunity to rebut the charge that they have entered or remained in the United States illegally. Court Four alleged that Defendants policies and practices violated the Fifth Amendment guarantee against self-incrimination. Count Five alleged that Maricopa Countys post-Proposition 100 policy of prohibiting appointed counsel at initial appearances violates the Sixth Amendment right to counsel.

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Count Six alleged that the Proposition 100 laws violate the Eighth Amendments Excessive Bail Clause. Count Seven alleged that the Proposition 100 laws are preempted by federal immigration law. Plaintiffs seek declaratory and injunctive relief against the Proposition 100 laws and against Defendants policies and practices enforcing them. On December 9, 2008, the district court granted Plaintiffs motion to certify the case as a class action pursuant to Rule 23(b)(2), on behalf of the class defined as [a]ll persons who have been or will be ineligible for release on bond by an Arizona state court in Maricopa County pursuant to Section 22(A)(4) of the Arizona Constitution and A.R.S. 13-3961(A)(5). ER 19; see also ER 6 n.5. By the same order, the district court granted Defendants motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs preemption claim. ER 19. The parties filed cross-motions for summary judgment on Counts One, Two, Five, and Six, and Plaintiffs also moved for summary judgment on Count Three. On March 29, 2011, the district court granted Defendants motion for summary judgment and denied Plaintiffs motion. ER 2.

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Plaintiffs subsequently filed a motion to voluntarily dismiss Count Four of the complaint and for entry of judgment. ER 54. The district court granted this motion on May 13, 2011. ER 50. On May 13, 2011, the district court entered final judgment, dismissing the action as to Counts One, Two, Three, Five, Six, and Seven, and dismissing the action without prejudice as to Count Four. ER 1.

STATEMENT OF THE FACTS I. Introduction Proposition 100 was submitted to Arizona voters as part of a package of legislation introduced to deal with illegal entry, illegal trespassers and the illegal alien problem. ER 285-91, 293-94. Its legislative history is permeated by express intent to punish illegal immigrants for violating federal immigration laws. See, e.g., ER 143, 144-45, 147, 152, 187, 194, 202, 203, 242, 254-55, 292. Defendants proffered justification for Proposition 100 is Arizonas interest in assuring that illegally-present defendants appear to stand trial. ER 67. But the Proposition 100 laws have never been limited to that purpose. In fact, their purpose and function is to effectuate the wholesale detention of an arbitrary and excessive range of defendants to punish their purported violations of immigration laws.

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II.

The Arizona Bail Scheme Applicable To Unauthorized Immigrants Prior To Proposition 100 Before Proposition 100 was enacted, the Arizona Constitution

provided that [a]ll persons charged with crime shall be bailable by sufficient sureties, except in the case of defendants charged with capital crimes, sexual assault, sex crimes involving minors, felony offenses committed while the person charged was already on bail for a separate felony charge, and defendants charged with [f]elony offenses if the person charged poses a substantial danger to any other person or the community, if no conditions of release which may be imposed will reasonably assure the safety of the other person or the community. Ariz. Const. art. II, 22(A).2 Proposition 100 added to this narrow list any case in which a person who has entered or remained in the United States illegally is charged with a Class 1 through 4 felony or aggravated driving-under-the-influence. Prior to Proposition 100, the Arizona courts already had numerous tools for assessing and addressing a flight risk presented by a defendant who is in the country unlawfully. See A.R.S. 13-3967(B) (non-exhaustive list of factors to consider in setting bail including accuseds family ties,

For any of the exceptions to apply, there was an additional requirement that, as to the present charge, the proof had to be evident or the presumption great. Id.

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employment, financial resources, character and mental condition, and length of residence in the community); id. 13-3967(D) (authorizing broad range of release conditions including bond, cash, and security requirements and limited forms of custody); State v. Donahoe ex rel. County of Maricopa, 203 P.3d 1186 (Ariz. Ct. App. 2009) (recognizing inherent power of trial courts to impose bond-related terms not specifically authorized by statute or rule). If a court found that there were no conditions would assure appearance, the court could deny release or set a bail amount that effectively precluded release. See Rendel v. Mummert, 474 P.2d 824, 828-29 (Ariz. 1970); Gusick v. Boies, 233 P.2d 446, 448 (Ariz. 1951). Before Proposition 100 was submitted to the voters, the Arizona legislature enacted a statutory amendment requiring courts making bail determinations to consider the accuseds immigration status and place of residence. Ariz. Laws 2006, Ch. 380, 4 (codified at A.R.S. 133967(B)(11), (12)). But even before that, courts could already take immigration status into consideration in making bail determinations. ER 144:13-18, 159:25-160:19, 162:17-28 , 180:26-181:19; see also ER 364-65. III. Legislative History of the Proposition 100 Laws Although the state courts already had these numerous tools for addressing flight risk in cases involving unauthorized immigrants, and

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without any evidence that those tools were inadequate, the Arizona legislature began considering bills that ultimately resulted in the Proposition 100 laws. On January 18, 2005, State Representative Russell Pearce introduced Arizona House Bill (HB) 2389, which would have provided that [a] person who is arrestedand who is not a citizen of the United States or an alien lawfully admitted for permanent residence as defined in 8 United States Code Section 1101(a)(20) may be temporarily detained to permit deportation or exclusion under the Bail Reform Act of 1984 if a judicial officer finds that the person may flee or pose a danger to another person or to the community. ER 227; see ER 3:9-10. On the same date, Representative Pearce introduced Arizona House Concurrent Resolution (HCR) 2028, which would have referred the same measure to the Arizona voters. ER 230-32. Representative Pearce subsequently proposed an amendment to HCR 2028 that replaced the original temporary detention proposal with an absolute prohibition on bail. ER 208-09 ( 11). The proposed rule would apply in serious felony prosecutions if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge. ER 208-09 ( 11), 247. That

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amendment was adopted and ultimately was approved by the voters as Proposition 100. In support of his amended bill, Representative Pearce stated that all illegal aliens in this country ought to be detained, debriefed and deported. ER 143:4-5; see also ER 147:2-5. He also stated that the bills purpose is finding and detaining all persons who are here illegally. ER 292:3-24. Pearce argued at a hearing that we have to end this [federal] system of catch and release ER 149:21-22; 300:12-15, and he agreed that Proposition 100 was one of several bills he had proposed to mak[e] sure there are consequences and punishments attached to [unauthorized immigration] status. ER 295:9-296:4. He argued in a Senate Judiciary Committee hearing that Proposition 100 simply bridges the gap, a loophole in the law that would allow people who are in this country illegally who have no business to be released if they commit any crime, they have no business being released if they commit no crime, no additional crime, cause theyre already in this country illegally. ER 144:25-145:4; see ER 299:1-14. He also described Proposition 100 as a reasonable approach to have the border secured, our laws enforced. ER 142. In another hearing, Representative Pearce argued that Proposition 100 would help address the

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federal governments gross negligence in enforcing our borders and securing this nation from an invasion. ER 202. Other Proposition 100 supporters expressed the same intent to use pretrial incarceration to punish and to deter illegal immigration. For example, Representative Barnes supported pretrial detention because the mere fact that theyre here undocumented [means] that the crime has already been committed. ER 203:26-28. Senator Harper stated, [W]hat part of illegal dont we understand? [I]llegal aliens shouldnt be able to get bond for anything. ER 152:27-28. Another legislator said he was amazed that we provide bail to anybody whos arrested for a crime that is an illegal alien.I therefore support this bill as a first step to what we should be really doing and thats deporting anybody here illegally. ER 194:19-26. The Maricopa County Attorney, who was directly involved in the legislative effort, testified that Proposition 100 was part of his offices involvement in the fight against illegal immigration. ER 340:25-342:12. On May 12, 2005, the legislature passed HCR 2028 as amended. ER 212 ( 11, 20), 251-52. The referendum was submitted to the voters on the November 2006 ballot as Proposition 100. ER 254-56. The official ballot pamphlet included arguments in support of the proposition, referring to persons to be detained under Proposition 100 as dangerous thugs and

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violent criminals. ER 254-56. One ballot argument stated that the law would protect and defend Arizonans from the illegal invasion and address[] one area that needs to be resolved in this fight to secure our borders. ER 255. Another argued that [o]ur state constitution was not intended to bail out illegal immigration. ER 255. Another referred to Proposition 100 as part of th[e] fight to secure our borders. ER 255. Pre-election media coverage described Proposition 100 to the voters as one of several tough anti-illegal alien ordinances that would crack down on illegal immigration. ER 279. Newspaper reports stated that Proposition 100 aimed at curbing illegal immigration ER 267; See ER 268 (noting proponents argument that Proposition 100 would help make Arizona a difficult place for illegal immigrants to live); ER 272 (describing Proposition 100 as addressing problem[] of illegal immigration caused by governments failure to step up to the plate); ER 275 (noting that Proposition 100 conveyed the message that voters are fed up with the way officials have bungled immigration enforcement). Proposition 100 was passed by the voters in November 2006. IV. The Legislature Broadly Defines Serious Felony Offense Supporters characterized Proposition 100 as applying to violent criminals, ER 254-255, and legislative discussions had similarly focused on

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violent aliens and violent criminals, See, e.g., ER 144, 146, 148-149. However, ballot materials did not advise voters that the legislature had already defined serious felony offense as any class 1, 2, 3 or 4 felony or [aggravated driving-under-the-influence]. Ariz. Laws 2006, Ch. 380, 3 (codified at A.R.S. 13-3961(A)(5)(b)). That definition includes many nonviolent crimes, including shoplifting or any other theft of property or services worth more than $3,000, A.R.S. 13-1802, altering a lottery ticket with intent to defraud, id. 5-516, any auto theft, id. 13-1814, unlawful copying or sale of sound recordings, id. 13-3705, certain identity theft offenses, id. 13-2009, tampering with a computer with the intent to defraud, id. 13-2316, and various other computer-tampering offenses, id. 13-2316(A)(1)-(4), (E). Many of these offenses, now defined as a serious felony offense, are eligible for non-custodial or time-served sentences. ER 312:4-25; 355:10-13. This definition of serious felony offense was broader than the definition originally recommended by the Senate Judiciary Committee and the Maricopa County Attorney, ER 310-11, which would have excluded Class 4 felonies. ER 247, 322:17-323:5. The legislature did not make any findings to justify its exceedingly broad definition. See ER 218-19( 42). The legislature departed from the existing definition of the term serious

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offense in another Arizona statute as including only violent felonies: first or second degree murder, manslaughter, certain aggravated assaults, sexual assault, dangerous crimes against children, certain sexual offenses against children, arson, armed robbery, kidnapping, and first degree burglary. See A.R.S. 13-706(F)(1). When one legislator raised concerns that the Class 3 felony category includes minor offenses, another legislator responded: To that point, what part of illegal dont we understand? Illegal aliens shouldnt be allowed to get bond for anything. ER 152. During the same hearing, the Maricopa County Attorney testified that if legislators did not believe that a certain non-violent Class 3 felony (illegal sale or copying of an audio or video recording) should be included within Proposition 100s scope, they could change the relevant statute law to reclassify the offense as other than a Class 3 felony. ER 151. As to Class 4 felonies, the County Attorney essentially admitted in his deposition that not all such offenses are serious felonies. ER 323:1-7. V. The Legislature Sets A Probable Cause Standard For The Determination Of Immigration Status In applying Proposition 100 in the early days after its enactment, there was disagreement as to the standard of proof that should apply to the determination of immigration status, with many courts apparently applying a

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standard that was more demanding than mere probable cause.3 See Segura v. Cunanan, 196 P.3d 831, 839 (Ariz. Ct. App. 2008); ER 330-32, 357:23358:9. To resolve the uncertainty, on April 3, 2007, the Chief Justice of the Arizona Supreme Court issued Administrative Order 2007-30, which provided for a probable cause standard to be applied at initial appearances. If the court found probable cause, a follow-up evidentiary hearing was to be promptly held. At that hearing (known as a Simpson or Segura hearing), the court would use the proof evident/presumption great standard to determine immigration status. See Segura, 196 P.3d at 839; ER 75-77. During the same time period, however, the Maricopa County Attorney was urging the legislature to enact the lower probable cause standard of proof. See ER 332-36. In the Maricopa County Attorneys view, the courts application of the proof evident/presumption great standard was holding the prosecution to too high a standard and resulting in the release of too many defendants. ER 70-71. Rather than adopt the Chief Justices order, the Arizona legislature passed Senate Bill 1265 (SB 1265), which provided for a probable cause

The proof evident/presumption great standard, for example, is more demanding than the probable cause standard. See, e.g., Simpson v. Owens, 85 P.3d 478, 487-91 (Ariz. Ct. App. 2004).
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standard for the immigration status determination. See Ariz. Laws 2007, Ch. 289, 2 (amending A.R.S. 13-3961). In explaining the choice, Representative Pearce stated that [we] ought toerr[] on the side of holding people without bond if theyre in this country illegally and have committed serious felonies.That ought to be the standard. ER 187. SB 1265 also provided courts with broad discretion to consider any sort of evidence in support of an allegation of illegal immigration status, and not limiting such proof to a determination by federal immigration authorities. Ariz. Laws 2007, Ch. 289, 2 (codified at A.R.S. 133961(A)(5)(a)) (courts may consider inter alia whether federal immigration authorities have issued a hold, information from any law enforcement agency, or [a]ny other relevant information that is obtained by the court or that is presented to the court by a party or any other person). VI. Maricopa County Implements Proposition 100 Through Policies and Practices Causing Unfair And Error-Prone Proceedings Before Proposition 100, neither prosecutors nor defense counsel regularly appeared at initial appearances in Maricopa County. ER 4:3-4, 359-61, 362, 487. After Proposition 100, the Maricopa County Attorneys Office (MCAO) adopted a policy requiring prosecutors to argue for nonbondability at initial appearances, ER 414-15, 418-19, and the head of the Maricopa County indigent defense services determined the nature of
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initial appearances had so changed under Proposition 100 that appointed counsel was necessary. ER 325, 488. After interventions by the Maricopa County Attorney and the Maricopa County Board of Supervisors, a County official overrode the decision of the head of indigent defense services and forbade the appearance of appointed defense counsel at initial appearances, ER 327, 328, 345, 483. However, MCAO continued to send a prosecutor to every initial appearance until July 2009 and since then, has had prosecutors available for initial appearances. ER 362-63. Since enactment of the probable cause standard, courts have adopted immigration status determinations by the Maricopa County Sheriffs Office (MCSO) in virtually 100% of cases, ER 444, despite the fact that MCSO has made erroneous determinations, ER 383-84, 407, 439-40. Prior to the adoption of the probable cause standard, the courts had been denying bail in only about 6% of the cases where prosecutors asserted nonbondability under Proposition 100. ER 4:21-25, 331. In Maricopa County, defendants are not informed of their right to a follow-up evidentiary hearing within seven days after the initial appearance. ER 4:13-15, 438, 555 ( 96). Because many defendants are unable to meet with appointed counsel until up to several weeks after their initial

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appearance, ER 382, 555 ( 97), defendants seldom request a Simpson/Segura hearing after being held nonbondable.

SUMMARY OF THE ARGUMENT Proposition 100 violates substantive due process because it impermissibly imposes criminal pretrial detention as punishment for illegal immigration. The district court acknowledged that Proposition 100 may have been motivated by a desire to punish, ER 9-11, and to control[] illegal immigration, ER 11:12-13, but inexplicably granted summary judgment for Defendants, stating that Proposition 100 also serves a legitimate interest in controlling flight risk. ER 11. This was error. Though addressing flight risk is a legitimate regulatory interest, there was no evidence before the legislature, or the district court, of any need for legislation targeting illegal immigrants, let alone a categorical prohibition on pretrial release. The overwhelming evidence of express punitive intent, and of Proposition 100s grossly excessive and arbitrary reach, should have ended the substantive due process inquiry in Plaintiffs favor. Proposition 100 also violates the U.S. Constitutions fundamental guarantee that a person cannot be incarcerated without an individualized determination that the deprivation of liberty is necessary to serve a

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compelling state interest. The district court erred in failing to recognize this underlying premise of the Supreme Courts key decision on pretrial detention statutes, United States v. Salerno, 481 U.S. 739 (1987). Salerno instructs that even when a legislature expresses no punitive intent, a pretrial detention law still must be narrowly tailored, or carefully limited, in both its substantive scope and the process it provides. Salerno repeatedly emphasizes that the federal bail statute at issue comported with the fundamental due process guarantee of an individualized bail hearing with procedural protections. 481 U.S. at 742-43, 747, 750-51. Proposition 100 grossly violates this core principle, by imposing a categorical no-release rule without any individualized determination relating to flight risk, resulting in detention even when a state court would find that the particular circumstances warrant release. Further, Proposition 100 is grossly excessive in that it encompasses hundreds of relatively minor felony offenses, including many non-violent offenses, and many offenses that may be punished by probation or relatively short terms of imprisonment. The legislative choice of a probable cause standard was also deliberately excessive. Proposition 100 also violates the Excessive Bail Clause of the Eighth Amendment. This constitutional guarantee prohibits the arbitrary or

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unreasonable denial of bail, which is precisely what Proposition 100 mandates. Even if Proposition 100 were not unconstitutional for those reasons, it violates procedural due process guarantees. First, the probable cause standard for finding that a defendant is illegally present in the United States, and thus to be detained for the pendency of the criminal case, is fundamentally unfair. It guarantees that there will be erroneous determinations causing substantial deprivations of liberty. Second, Defendants policies and practices implementing Proposition 100 further deprive defendants of a fair opportunity to contest the accusation of illegal immigration status. Among other things, MCSO deputies ask unrepresented defendants inculpatory questions without advising them of the potential consequences, convey conclusory and error-prone immigration status determinations, which are adopted by courts in 100% of cases, do not advise defendants that they have a right to a follow-up evidentiary hearing to contest the finding of illegal immigration status, and do not permit defendants to see the evidence used against them in Proposition 100 hearings. In addition, Maricopa Countys post-Proposition 100 policy prohibiting appointed counsel at initial appearances violates the Sixth

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Amendment right to counsel, because under Proposition 100, initial appearance hearings are a critical stage of criminal proceedings. Finally, the Proposition 100 laws are preempted by federal law. Proposition 100 imposes incarceration based upon purported immigration violations, and permits such determinations to be made by state courts without any regard to federal immigration law. This state-law immigration detention scheme is preempted by a comprehensive federal statutory scheme for immigration detention.

STANDARD OF REVIEW The district courts rulings on the Parties motions for summary judgment are reviewed de novo. Karuk Tribe of Cal. v. U.S. Forest Serv., 640 F.3d 979, 987 (9th Cir. 2011); Redev. Agency of City of Stockton v. BNSF Ry. Co., 643 F.3d 668, 672 (9th Cir. 2011). The district courts ruling on Defendants Rule 12(b)(6) motion to dismiss Plaintiffs Supremacy Clause claim is also reviewed de novo. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Challenges to a statutes constitutionality are reviewed de novo. Sea River Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 668 (9th Cir. 2002).

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ARGUMENT I. PROPOSITION 100 VIOLATES SUBSTANTIVE DUE PROCESS A. PROPOSITION 100 VIOLATES DUE PROCESS BECAUSE IT IMPERMISSIBLY IMPOSES PRETRIAL DETENTION AS PUNISHMENT

Proposition 100 categorically imposes pretrial detention on criminal defendants as a punishment for purported illegal immigration. It therefore violates the general rule of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial. Salerno, 481 U.S. at 749. The district court erred in concluding that Proposition 100 is not an impermissible scheme of punishment. It plainly is. To determine whether a pretrial detention scheme constitutes impermissible punishment or permissible regulation,[the court] first look[s] to legislative intent. Id. at 747 (citing Schall v. Martin, 467 U.S. 253, 269 (1984)). If the evidence shows that the legislature expressly intended to impose punitive restrictions, the scheme must be struck down as being impermissibly punitive. Id. In the absence of such express intent, the punitive/regulatory distinction turns on whether an alternative purpose to which the [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]. Id.
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(quoting Schall, 467 U.S. at 269 (additional internal quotation marks omitted); see Schall, 467 U.S. at 269 ([The] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.) (quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)). Proposition 100 far exceeds constitutional bounds as set out in Supreme Court precedents. In Salerno, the Court upheld the federal bail statute permitting pretrial detention of a defendant who poses a threat to public safety because [t]he legislative historyclearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. See S. Rep. No. 98-225, at 8. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. 441 U.S. at 747; see id. at 742. Further, the statute was carefully limit[ed]to the most serious of crimes and required the Government to convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or of any person. Id. at 747, 750; id. at 742 (court required to state findings of fact in writing and support conclusions with clear and convincing evidence).

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In Schall, the Court approved a statute permitting the pre-hearing detention of an accused juvenile delinquent if there was a serious risk that he might otherwise commit a crime. 467 U.S. at 256-57 The Court found no indication in the statute itself that preventive detention is used or intended as a punishment. Id. at 269. To the contrary, the statute permitted detention for 17 days at most; a court was required to determine whether detention was necessary in the individual case; and both the conditions of confinement and the procedural protections provided in the statute reflected the regulatory and parens patriae objectives relied upon by the State. Id. at 269-71; see also id. at 265. In stark contrast to Salerno and Schall, Proposition 100 categorically requires pretrial incarceration without any regard for individual factors or considerations. Proposition 100s legislative history provides clear evidence that its purpose is to punish and to deter immigration offenses. As even the district court found, [t]he legislative history suggests that Proposition 100 may have been motivated by a desire to punish, ER 9:5-6; some statements by legislators relate to controlling illegal immigration, ER 11:12-13; and there were no legislative findings regarding any legitimate purpose for the law, ER 9:4-5.

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The record below amply demonstrated the legislatures express intent to punish illegal aliens charged with serious felonies by depriving them of the possibility of pretrial release that other defendants enjoy.4 Using pretrial detention to keep [persons] off the streets for reasons other than addressing a particular flight risk or danger posed by the individual defendant demonstrates an intent to punish. Cf. United Steel Workers v. Phelps Dodge Corp., 865 F.2d 1539, 1546 (9th Cir. 1989) (jurors could reasonably infer an intent to punish strikers from employers request to police to keep strikers off the streets by setting high bail). But even if the legislative record were not rife with expressions of intent to impose punishment for immigration violations, Proposition 100s punitive intent would still be clear because of the utter absence of any showing that there was a legitimate problem of flight risk and of any effort

These were not isolated statements by individual legislators, but rather the consistent expression of intent by Proposition 100s drafter and supporters. The same intent was reflected in ballot materials and press stories before the voters. These sources are good evidence of Proposition 100s legislative intent. See, e.g., Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976) (reviewing statements of principal sponsor to determine legislative intent); Valeria v. Davis, 307 F.3d 1036, 1041 & nn.7& 8 (9th Cir. 2002) (considering ballot materials, statements of propositions supporters, press releases, and published opinion pieces to determine intent of voter initiative); see generally Salerno, 481 U.S. at 742, 747, 750 (looking to legislative history to discern whether bail statute provision was punitive).
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to tailor the law to such a legitimate purpose.5 The legislature did not request or review any empirical data, studies or testimony relating to any legitimate regulatory purpose for enacting Proposition 100.6 ER 206, 21719, 282:16-283:20, 284:3-20. No evidence was adduced that illegal immigrants as a class pose any more of a flight risk than any other criminal defendants, that they fail to appear for criminal proceedings at an excessive rate, or that existing tools available to state courts were inadequate to address any flight risk posed by individual defendants. ER 9:12-17 (district court order noting that [n]o one came forwardwith evidence to support[Representative Pearces] claim that people who are unlawfully present in the United States are categorically more of a flight risk than people who are not unlawfully present, nor have Defendants in this matter presented evidence to that effect). Nor were less drastic measurese.g., a rebuttable presumption in favor of detention, or heightened bond or

For example, after Proposition 100 was enacted, legislators expressed their displeasure that state courts were still releasing suspected illegal immigrants on bail, but the legislators did not make any inquiry into whether the released defendants actually appeared as directed. See ER 170-185. 6 And neither the Maricopa County Attorneys Office nor the Maricopa County Sheriffs Office had any such data or evidence. ER 310-11, 317-18; 343-44, 348-49, 350, 351-52; 402-03.
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supervision requirementseven considered.7 This demonstrates an impermissible punitive purpose. Cf. United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985) (due process and Eighth Amendment, as well as federal statute, require least restrictive bail conditions that will reasonably assure appearance); In re Newchurch, 807 F.2d 404, 408 (5th Cir. 1986). The district court seized on Representative Pearces statement that if you are in this country illegallyyouve got no roots, you can go home any day. ER 201. But even leaving aside the that this assertion was unfounded, legislators made no attempt to limit Proposition 100 to persons who have no roots in the community or who have a foreign home to which they can flee. Nor did the district court consider that Proposition 100 was enacted even though Arizona law already provided state courts with the ability to address such risks in individual cases, and thus Proposition 100 was entirely unnecessary.8 This absence of any legislative tailoring to meet

Plaintiffs do not believe that such less drastic measures would be constitutional either, but the fact that they were not even considered demonstrates that Proposition 100 was punitive and excessive. 8 The record shows that prior to Proposition 100, state courts released some illegal immigrant defendants with longstanding residence in the United States and extensive family ties in Arizona, ER 177:1-4, 375:23-377:1, 390:3-21, and that such defendants appeared as directed, ER 337:15-22, 391:18-24, 470, 504, 337:15-22. And thus Proposition 100 has resulted in pretrial detention of persons who previously would have been released on bond or on their own recognizance. ER 305:19-306:1, 313:14-19, 392:9-21. Indeed, upon Proposition 100s enactment, defendants who had been
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a legitimate state interest in itself demonstrates an intent to punish. See Bell, 441 U.S. at 539 ([I]f a restriction or condition is not reasonably related to a legitimate goalif it is arbitrary or purposelessa court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted.). Proposition 100 bears another hallmark of a punitive detention law: Its operation will promote the traditional aims of punishmentretribution and deterrence with respect to immigration offenses. Kennedy v. MendozaMartinez, 372 U.S. 144, 168-69 (1963); see Demery v. Arpaio, 378 F.3d 1020, 1031 (9th Cir. 2004) (deterrence does not qualify as a nonpunitive goal with regard to pretrial detainees); see also ER 163 (Representative Pearce: [T]his simply says youre in the country illegally, which is already a crime and you violate our laws, serious felonies, then were going to amend the constitution to say youre not bondable). Finally, as the legislature was aware, see ER 303:4-14, 324:3-10, a provision that categorically prohibits any possibility of release on bail for hundreds of charged offenses is decidedly beyond the pale as compared to

released on bail were immediately put in custody despite their record of making court appearances as directed. ER 388:25-389:7. The record also shows that defendants who have been held non-bondable under Proposition 100 have subsequently been deemed bondable by federal immigration judges in removal proceedings, ER 397:2-398:10.
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other American bail laws. In this country, categorical bail prohibitions are rare and typically limited to offenses carrying the death penalty or life imprisonment or to circumstances indicating the individual defendants previous record of flight or recidivism or to particularly grave offenses (such as violent sex crimes or child molestation) that are linked by legislatures to a risk of immediate dangerousness.9 On the basis of this evidence of legislative intent, the district court should have found that Proposition 100 is an impermissible punitive statute. But instead, while fully acknowledging the evidence of punitive intent, the district court observed that there was also evidence that legislators considered the issue of flight risk, ER 9, and concluded that the record as a whole does not support a finding that Proposition 100 was motivated by an improper punitive purpose, ER 11:10-12.10 This was error for all the reasons stated above. The record is clear that Proposition 100 was enacted

See Addendum B (chart listing state laws categorically limiting release on bail). 10 To the extent the district court believed the question of motivat[ion] was a fact issue, the court should not have weighed the evidence and, as to Defendants summary judgment motion, should have drawn all reasonable inferences in Plaintiffs favor. But in any event, legislative intent is a legal question and therefore reviewed de novo. See Sea River Maritime Fin. Holdings, 309 F.3d at 668-77; Doe v. Otte, 248 F.3d 832, 839 (9th Cir. 2001), revd on other grounds sub nom. Smith v. Doe, 538 U.S. 84 (2003); Redev. Agency of City of Stockton, 643 F.3d at 672.

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for the purpose of imposing pretrial detention as punishment for illegal immigration. Finally, two specific aspects of the Proposition 100 laws demonstrate the legislatures punitive intent. First, the legislature deliberately chose to apply the categorical no-release rule to hundreds of offenses even though they knew that many were not truly serious. See, e.g., ER 145-46, 151-53, 155-56. Second, in enacting implementing legislation to establish the standard of proof for prosecutors seeking to show that a defendant has entered or remained in the United States unlawfully, the legislature also deliberately decided to err[] on the side of holding people without bond. ER 187. The deliberate choice of such excessive measures provides additional evidence of the purpose to punish. See Salerno, 481 U.S. at 747. In summary, Proposition 100 violates substantive due process because it impermissibly uses pretrial detention to punish and to deter illegal immigration. B. PROPOSITION 100 VIOLATES DUE PROCESS BECAUSE IT IMPOSES DETENTION WITHOUT INDIVIDUALIZED DETERMINATIONS RELATING TO FLIGHT RISK

Even if Proposition 100s legislative history were not rife with expressions of punitive intent, the record amply demonstrates that it is excessive and not narrowly tailored to achieve any legitimate state interest.
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Indeed, the Proposition 100 laws forbid a state court to make any individualized determination relating to flight risk and, upon being implemented, resulted in the immediate remand into custody of defendants who had been released on bail and were making court appearances without incident. ER 388:25-389:7. Moreover, the Proposition 100 laws are excessive in their coverage of an extraordinarily broad range of offenses including those often resulting in non-custodial sentencesand in the deliberate choice of an overbroad standard of proof. A showing of dangerousness or flight risk may be a legitimate basis for denying pretrial release in appropriate cases. See Salerno, 481 U.S. at 749; Bell, 441 U.S. at 534 & n.15. But pretrial detention (like other forms of detention not imposed after adjudication of guilt of a crime) is limited to carefully limited cases in which there is a compelling state interest that is sufficiently weighty to override the individuals fundamental right to freedom from confinement. Salerno, 481 U.S. at 747, 750-51, 755; cf. Schall, 467 U.S. at 263-65; see also United States v. Montalvo-Murillo, 495 U.S. 711, 716 (1990); Schilb v. Kuebel, 404 U.S. 357, 365 (1971); Bandy v. United States, 81 S. Ct. 197, 197 (1960) (Douglas, J., in-chambers op.) (The fundamental tradition in this country is that one charged with a crime is not, in ordinary circumstances, imprisoned until after a judgment of

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guilt.); Stack v. Boyle, 342 U.S. 1, 4 (1951) (discussing traditional right to freedom [on bail] before conviction); Hudson v. Parker, 156 U.S. 277, 285 (1895). The district court completely missed this dimension of the due process inquiry, concluding instead that it is logical to assume that a person who is unlawfully present in the United States may not appear for trial. ER 11:18-24. Whether or not it is logical to assume that being unlawfully present is categorically associated with a greater risk of flight, such an assumption does not support the enactment of an irrebuttable presumption that no defendant who is unlawfully present in the United States will appear as required, without any regard for his individual circumstances, and no matter what conditions of pretrial release are imposed. As Salerno makes clear, the touchstone of due process is the provision of some individualized process to determine that (1) a particular defendant poses the threat that is legitimately addressed by pretrial detention and (2) that that threat cannot be sufficiently mitigated by imposing conditions of release. 481 U.S. at 750. Neither the Supreme Court nor any federal court of appeals has ever approved a scheme of criminal pretrial incarceration that

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did not require such an individualized determination.11 Federal and state courts have struck down such schemes because they are fundamentally at odds with the constitutional requirement of individualized findings to justify the denial of bail. Because Proposition 100 is unprecedented, the Supreme Court has never been confronted with a statute that imposes such an extreme categorical ban on pretrial release without any individualized hearing. But in Salerno, the Supreme Court upheld a far less drastic restriction on pretrial release only because the statute required a full-blown adversary hearing in which the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person, as to the particular defendant before the court. Id. Only when the government has succeeded in making this individualized showing, the Court reasoned, could the defendant be denied

11

Such schemes may be viewed as imposing an impermissible irrebuttable presumption that no condition of release will reasonably assure the defendants appearance. The Supreme Court has struck down similar irrebuttable presumptions when they are used to deprive individuals of fundamental rights. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-48 (1974) (striking down mandatory pregnancy leave based on conclusive presumption that pregnancy would interfere with work); Stanley v. Illinois, 405 U.S. 645, 651-58 (1972) (striking down law precluding unwed fathers from establishing parental rights based on irrebuttable presumption that all unwed fathers are unfit to be parents).

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bail. Id. at 750-51; see also United States v. Scott, 450 F.3d 863, 874 (9th Cir. 2006) (noting Salernos reliance on procedural safeguards and individualized determination).12 Because the statute required an individualized determination that the defendant posed such a danger to the community that no conditions would mitigate the risk, the court could not conclude that the pretrial detention law was facially invalid under the Due Process Clause. See Salerno, 481 U.S. at 751; see also Schall, 467 U.S. at 263, 269-70. In the only federal circuit court opinion (of which Plaintiffs are aware) that has considered a categorical prohibition on pretrial release, the Eighth Circuit struck down a state constitutional amendment forbidding pretrial release on defendants charged with certain sex offenses. The court explained that [t]he [statutes] fatal flaw[was that] the state has created an irrebuttable presumption that every individual charged with this particular offense is incapable of assuring his appearance by conditioning it upon In other detention contexts, the Supreme Court also has emphasized that individualized hearings to assess the states proffered justification are critical to the constitutionality of statutory schemes. See, e.g., Foucha v. Louisiana, 504 U.S. 85, 71, 81 (1992) (striking down state civil commitment law and distinguishing Salerno because of lack of requirement of individualized finding of mental illness as well as dangerousness); Kansas v. Crane, 534 U.S. 407, 409-10 (2002); Kansas v. Hendricks, 521 U.S. 346, 352-53, 35758 (1997); Addington v. Texas, 441 U.S. 418, 425-27 (1979); Jackson v. Indiana, 406 U.S. 715, 731, 737-38 (1972).
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reasonable bail or is too dangerous to be granted release. The constitutional protections involved in the grant of pretrial release by bail are too fundamental to foreclose by arbitrary state decree. Hunt v. Roth, 648 F.2d 1148, 1164 (8th Cir. 1981), vacated as moot sub nom. Murphy v. Hunt, 455 U.S. 478 (1982). The Eighth Circuit concluded that the statute prohibiting bail for those charged with certain sex offenses constitute[d] an unreasonable and arbitrary denial of bail. 648 F.2d at 1162. Hunt further noted that [a] judicial officer who is legislatively denied discretion to consider these factors is required to arbitrarily deny every defendant the right to bail based solely on the particular crime charged, in violation of the Eighth Amendment. Id. at 1165.13 In Escandar v. Ferguson, 441 F. Supp. 53 (S.D. Fla. 1977) the federal district court struck down on due process grounds a provision of the Florida Constitution making a person charged with an offense punishable by life imprisonment ineligible for bail because it impermissibly rested on an unshakeable, irrebuttable presumption of non-appearance for trial. 441 F. Supp. at 59; id. (The defendant may, in fact, be a perfectly good bail risk

Hunt was an Eighth Amendment case, but the two standards are substantially equivalent. Compare Salerno, 481 U.S. at 747 (due process standard is whether bail scheme is punitive or excessive) with Hunt, 648 F.2d at 1157 (Eighth Amendment forbids imposition of excessive bail); id. at 1163 (accused persons cannot be held with the intention of punishing them).
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who would never fail to appear but, under the procedure Florida has adopted, he will not even be heard.). In Huihui v. Shimoda, 644 P.2d 968 (Haw. 1982), the Hawaii Supreme Court struck down a state constitutional provision that categorically denied bail to defendants charged with serious crimes committed when they were already on bail on felony charges. The court held that under the state constitutions excessive bail clause, the bail law unreasonably presumed a defendants dangerousness, impermissibly stripped courts of the discretion to set bail or to consider other factors going to dangerousness, and unconstitutionally denied defendants a fair opportunity to rebut the legislatures class-wide presumption of dangerousness in their particular cases. 644 P.2d at 976-80. And in Augustus v. Roemer, 771 F. Supp. 1458 (E.D. La. 1991), a federal district court struck down a state statute that levied surcharges on bail bonds and thus resulted pretrial detention for many defendants. The court held that the accused has a fundamental due process right to have his or her eligibility for bail decided free from unreasonable individual determinations or arbitrary statutory classifications. 771 F. Supp. at 1465(emphasis in original). The court held that a statutory classification created for the purpose of categorically denying bail is invalid if it does not

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provide for a method of individualized determination citing a compelling reason or reasons when denying bail. Id. at 1465-67; see id. at 1466. Proposition 100 goes far beyond even these statutes that have been held to be unconstitutional. The few offense-based state laws that categorically limit release on bail, see Addendum B, have largely been limited to crimes for which the possible punishment is death or life imprisonment, on the theory that offenses carrying the harshest possible penalties necessarily entail a great degree of flight risk. See, e.g., United States v. Kennedy, 618 F.2d 557, 558-59 (9th Cir. 1980); Hunt, 648 F.2d at 1160; State v. Furgal, 13 A.3d 272, 279-80 (N.H. 2010). And even with respect to these limited laws, where the laws on their face do not provide for some judicial discretion, some state courts have avoided the serious constitutional problems inherent in the lack of individualized consideration by construing the laws to permit release on bail. See, e.g., State v. Arthur, 390 So.2d 717, 717-18 & n.3 (Fla. 1980) (citing cases); In re West, 88 N.W. 88, 89-90 (N.D. 1901). Thus, no precedent supports Proposition 100s extreme categorical rule against pretrial release.14 Proposition 100 applies to an exceedingly

Although an Arizona state appeal court has held that Proposition 100 does not violate due process, Hernandez v. Lynch, 167 P.3d 1264 (Ariz. Ct. App. 2008), it fundamentally misapplied Salerno. The state court also relied upon
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broad range of charged offenses, many of which can result in non-custodial or very short (often time-served) sentences. ER 312, 355. Under these circumstances, a categorical prohibition against pretrial release violates due process. See Arthur, 390 So.2d at 719 (The states interest in securing the defendants presence at trial is extremely important. But it does not so outweigh the defendants interest in retaining his liberty as to justify denying completely the opportunity to convince the court that release on bail is appropriate.); see also Salerno, 481 U.S. at 750-51 (noting importance of individualized showing that governments interest outweighs individuals fundamental interest in physical liberty).15

Zadvydas v. Davis, 533 U.S. 678 (2001) and Demore v. Kim, 538 U.S. 510 (2003), which are inapposite as they do not concern state criminal pretrial detention, but rather address federal administrative detention, which involves entirely different governmental interests. Moreover, both decisions emphasize that the Due Process Clause limits even federal administrative detention of non-citizens to the brief period necessary forremoval proceedings. Demore, 538 U.S. at 513; see also Zadvydas, 533 U.S. at 690; see also Nadarajah v. Gonzales, 443 F.3d 1069, 1076-77 (9th Cir. 2006). Nothing in Demore and Zadvydas remotely justifies Proposition 100s use of criminal pretrial detention. Outside the context of categorical bail prohibitions based on the risk of flight in capital or life-imprisonment cases, legislatures have limited categorical bail prohibitions to offenses that are particularly grave or arguably carry an inherent danger to the community. See, e.g., Simpson, 85 P.3d at 486 (upholding no-bail rule when defendant was charged with sexual conduct with a child under the age of 15, which is among most serious of crimes and carries inherent and continuing risks if bail were granted); Scott v. Ryan, 548 P.2d 235, 236 (Ut. 1976) (holding that commission of
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II.

PROPOSITION 100 VIOLATES THE EIGHTH AMENDMENT EXCESSIVE BAIL CLAUSE Proposition 100 also violates the Eighth Amendment, which provides

that [e]xcessive bail shall not be required. The prohibition against excessive bail is rooted in the most fundamental rights of an accused person under the Constitution, including the presumption of innocence. Stack, 342 U.S. at 4. Both the Supreme Court and this Court have emphasized that [s]ince the function of bail is limited, the fixing of bail must be based upon standards relevant to the purpose of assuring the presence of that defendant. Id.; see also Salerno, 481 U.S. at 754; Galen v. County of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007). In Stack, the Supreme Court rejected the categorical imposition of higher-than-usual bail requirements against a group of conspiracy defendants based on evidence that four persons previously convicted under the same statute had forfeited bail. To infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act, the Court stated. 342 U.S. at 5-6. The Court did not question that the defendants presented some risk of flight, but noted that the Constitution

felony while on probation for a misdemeanor conviction was not a grave offense that could trigger mandatory pretrial detention). Though Plaintiffs doubt that these laws are constitutional, the Court need not decide the issue.

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requires that the amount of bail must be linked to the particular facts in each individuals case. Id. Thus, the Eighth Amendment prohibits rules that impose restrictions on bail on a categorical basis arbitrarily or unreasonably. See United States v. Moore, 607 F. Supp. 489, 493 (N.D. Cal. 1985) (reasoning that legislature has power to designate some offenses nonbailable, but that the case law is clear that legislative determinations regarding the right to bail cannot be arbitrary); see also Hunt, 648 F.2d at 1157, 1162; cf. United States v. Portes, 786 F.2d 758, 766 (7th Cir. 1985); Augustus, 771 F. Supp. at 146465; Huihui, 644 P.2d at 976-79. In eliminating individualized bail determinations for an extraordinarily broad group of defendants, Proposition 100 is excessive and arbitrary in violation of the Eighth Amendment. III. THE PROPOSITION 100 LAWS, AND DEFENDANTS POLICIES IMPLEMENTING THEM, VIOLATE PROCEDURAL DUE PROCESS Proposition 100 also violates procedural due process because it deprives individuals of a core liberty interest without providing sufficient procedural safeguards to ensure their detention is justified. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Salerno, 481 U.S. at 746; Schall, 467 U.S. at 274 (procedures must be adequate to prevent erroneous and unnecessary deprivations of liberty); Carey v. Piphus, 435 U.S. 247, 259 (1978)

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(procedural safeguards serve to protect personsfrom the mistaken or unjustified deprivation of life, liberty, or property); Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (individuals must have an opportunity to be heard at a meaningful time and in a meaningful manner). First, the enactment of a probable cause standard to determine immigration status is procedurally deficient. Second, under Defendants policies and practices in Maricopa County, accused persons do not have an adequate opportunity to contest the prosecutions accusations as to immigration status. As a result, such immigration status determinations are exceedingly error-prone. A. Use of the Probable Cause Standard To Determine Immigration Status Violates Procedural Due Process

To implement Proposition 100, the legislature deliberately chose probable cause, the lowest of standards of proof, in order to err[] on the side of holding people without bond. ER 187, 530 ( 30). This standard violates the constitutional requirement that where losses of individual liberty [are] sufficiently serious, such as prolonged deprivation of physical liberty, the imposition of an elevated burden of proof is warranted. Santosky v. Kramer, 455 U.S. 745, 759 (1982); see generally Addington v. Texas, 441 U.S. 418, 423 (1979). Compare In re Winship, 397 U.S. 358, 364 (1970) (requiring proof of guilt beyond a reasonable doubt in criminal cases) and Woodby v. INS, 385 U.S. 276, 287 (1966) (clear, unequivocal,
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and convincing evidence standard applies to deportation proceedings) with Herman & MacLean v. Huddleston, 459 U.S. 375, 389-90 (1983) (in civil suits where particularly important individual interests are not implicated, preponderance-of-evidence standard is sufficient). The probable cause standard under Proposition 100 is constitutionally inadequate for two reasons. First, the nature of the immigration status inquiry in Proposition 100 cases is fundamentally incompatible with a probable cause standard of proof. The Supreme Court has repeatedly emphasized that the probable cause standard deal[s] with probabilities and factual and practical considerationson which reasonable and prudent men, not legal technicians, act. Gerstein v. Pugh, 420 U.S. 103, 121 (1975) (quoting Brinegar v. United States, 338 U.S. 160, 174-75 (1949)); see also Illinois v. Gates, 462 U.S. 213, 231 (1983). Immigration status is emphatically not a matter of probabilities, but rather is among the most technical of legal questions, requiring application of the federal Immigration and Nationality Act. See Castro-O'Ryan v. U.S. Dept of Immigration and Naturalization, 847 F.2d 1307, 1312 (9th Cir.1988). Second, the probable cause standard is inappropriate because of the grave deprivation that resultsbeing deemed categorically ineligible for any form of pretrial release pending trial. The district court therefore erred in

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relying upon Gerstein v. Pugh to uphold the use of the probable cause standard.16 First, Gerstein concerned a far more limited deprivation of liberty, as the law in question merely permitted the defendant to be held over until a preliminary hearing, not for the entire pretrial period like Proposition 100.17 Second, the probable cause standard at issue in Gerstein applied to a very different determinationwhether the accused has committed the charged offense, a question of fact that is amenable to consideration of the probabilities, unlike immigration status, which is inherently technical. See 420 U.S. at 113-14. Under these precedents, Proposition 100 immigration status determinations should be proved by a heightened standard that takes into account the complexity of the question and the exceptionally strong liberty interest at stake. For example, the clear and convincing evidence standard The district court also erred in holding that because flight risk determinations have been subjected to a preponderance of evidence standard, see United States v. Motamedi, 767 F.2d 1403, 1407 (9th Cir. 1985), the use of the probable cause standard is sufficient here. ER 14-15. This misses the point that, unlike immigration status, flight risk is a factual, predictive question that is susceptible to a preponderance of evidence standard. The district court further erred in eliding the real distinction between the probable cause and preponderance of evidence standards, ER 14-15. See Gerstein, 420 U.S. at 121 (unlike probable cause, preponderance of evidence standard require[s] the fine resolution of conflicting evidence). 17 Indeed, Gerstein-type detention was later strictly limited by the Supreme Court to a period of 48 hours. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
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has been applied where losses of individual liberty [are] sufficiently serious to warrant imposition of an elevated burden of proof. Santosky, 455 U.S. at 759 (citing In re Winship, 397 U.S. at 358 (juvenile delinquency); Schneiderman v. United States, 320 U.S. 118, 125 (1943) (denaturalization)). Cf. Foucha, 504 U.S. at 80 (applying clear and convincing evidence standard to civil commitment); Woodby, 385 U.S. at 286 (applying clear and convincing evidence standard to deportation proceedings). B. Defendants Policies and Practices Implementing Proposition 100 Violate Procedural Due Process

Compounding the constitutional defect in Proposition 100s standard of proof, Defendants implementing policies and practices violate due process because they fail to provide a meaningful opportunity for accused persons to contest the accusation that they have entered or remained in the United States illegally. Ariz. Const. art. II, 22(A)(4). Even while acknowledging that at least most of the procedural protections enunciated in Salerno are necessary for a state bail provision to comply with procedural due process, the district court erroneously held that the Proposition 100 procedures in Maricopa County are adequate. ER 14 (quoting Simpson, 85 P.3d at 492). This ruling ignored the record evidence that Proposition 100 proceedings lack the procedural safeguards that were key to Salernos
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holdingthe presence of counsel at the detention hearing, the right to testify and present witnesses and other evidence, the right to cross-examine prosecution witnesses, and the requirement that the court make written findings of fact. 481 U.S. at 742. Key among procedural defects is Defendant Arpaios policy and practice of having sheriffs deputies, who are officially assigned to a Proposition 100 Unit, conduct un-Mirandized interrogations about immigration status when an individual is arrested. ER 370, 401, 463, 538 ( 65). After conducting these interrogations and checking certain databases, ER 478-79, 538 ( 64), deputies list on a Post-It note the docket numbers of those individuals they deem nonbondable and give that note to the prosecution and the court. ER 422-23, 428-29, 446-47, 540-42 ( 6869). State court commissioners and the prosecution generally give these noteswhich include no reasoning or supporting factsconclusive effect. ER 412, 546-48 ( 82, 84). Moreover, indigent defendants, comprising the vast majority of defendants in Maricopa County, ER 307, 543 ( 76), are denied representation of counsel at the initial appearance, ER 4, 417, 543-44 ( 74, 77), despite the fact that prosecutors and sheriffs deputies may present evidence and arguments when they feel it is warranted, and the court

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may ask inculpatory questions about immigration status. ER 368-69, 474, 496, 503. Proposition 100 defendants are not provided any oral or written statement of reasons at the initial appearance for a determination that they are illegally present. ER 86, 88, 90, 98, 100, 102, 104, 106, 114-15, 11718, 120, 122, 124, 126, 129, 393, 555-556 ( 98). Nor are they permitted to see any evidence MCSO relies upon or submits. ER 393, 394, 556-57 ( 101). Some defendants have made erroneous statements that they are unlawfully in the United States when in fact they are lawfully present. ER 373-374, 395. In sum, initial appearances in Proposition 100 cases are exceedingly error-prone. ER 373-74, 383-84, 407, 439-40. Defendants assert that these deficiencies in the initial appearance are cured during a follow-up evidentiary hearing (known as a Simpson or Segura hearing). This assertion fails. First, although accused persons are entitled to a Simpson/Segura hearing within seven days, see Segura, 196 P.3d at 842, under Defendants policies and procedures they are not advised of this right. ER 438, 555 ( 96). Accused persons cannot meaningfully assert their right to a Simpson/Segura hearing because there is significant delay in obtaining counsel after the initial appearance; it often takes four weeks for defendants to meet with their appointed counsel. ER 382, 555 ( 97). Defendants, uncounseled and jailed, thus seldom request a Simpson/Segura hearing.

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And in any event, the Simpson/Segura hearings are themselves procedurally deficient. Defendants cannot see the evidence against them, ER 437, 459, 556-57 ( 101), contravening the settled due process principle that the evidence used to prove the Governments case must be disclosed to the individual so that he has an opportunity to show that it is untrue. Greene v. McElroy, 360 U.S. 474, 496 (1959). Defendants do not receive written decisions after Simpson/Segura hearings, ER 393, 557 ( 102), and there is no appeal as of right, ER 394, 557 ( 103). Without ever having access to the evidence used against them, or even a statement of the courts reasoning either at the initial appearance or at the Simpson/Segura hearing, accused persons have no meaningful process. As a result, the prosecution has a 100% success rate in seeking nonbondability rulings under Proposition 100, ER 443-44, 460, 557 ( 105), and the proceedings are rife with error, ER 373, 383-84, 407-08, 451, 455, 551-53 ( 88), 572, 574, 576, 585, 587, 589. Taken together, Proposition 100 bail procedures give rise to an intolerably high risk that accused persons will be erroneously locked up as illegal immigrants. This violates procedural due process. See Hamdi, 542 U.S. at 529 (noting that procedural due process requires analyzing the risk of an erroneous deprivation of the private interest) (quoting Mathews v.

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Eldridge, 424 U.S. 319, 335 (1976)); Carey v. Piphus, 435 U.S. 247, 259 (1978). IV. MARICOPA COUNTYS PROHIBITION OF APPOINTED COUNSEL VIOLATES THE SIXTH AMENDMENT The district court erred in rejecting Plaintiffs Sixth Amendment challenge to Maricopa Countys policy of prohibiting appointed counsel at initial appearances following the passage of Proposition 100. Proposition 100 has transformed the initial appearance into an adversarial hearing, where the defendant may confront arguments from the prosecution, questions from the bench, and adverse witnesses, posing a substantial risk of prejudice to the defendants rights. Indeed, upon passage of the Proposition 100 laws, both the MCAO and the indigent defense agency in Maricopa County began sending attorneys to initial appearances when generally neither side had appeared at initial appearances prior to Proposition 100. ER 359-61, 362, 414-15, 418-19. Defendant Maricopa County responded by forbidding appointed counsel from appearing at initial appearances, while Defendant MCAO has continued to staff initial appearances with prosecutors. ER 32728, 345, 362-63, 482. Defendants lopsided scheme contravenes the Sixth Amendment. Proposition 100 rendered the initial appearance a critical stage that requires the assistance of counsel under the Sixth Amendment. See
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Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16 (2008); Kirby v. Illinois,, 406 U.S. 682, 688-89 (1972); United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000). [T]he essence of a critical stage is not its formal resemblance to a trial, but the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel. United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003); see also Coleman v. Alabama, 399 U.S. 1, 7 (1970). Defendants implementation of Proposition 100 has infused initial appearances with all the hallmarks of an adversarial proceeding. Law enforcement officers may appear as witnesses and testify about defendants immigration status. ER 404, 422-23, 446-47, 542 ( 70-71).. MCAO prosecutors cover initial appearances and, at their option, may present arguments and evidence in support of nonbondability under Proposition 100. ER 509-10, 518, 545-46 ( 79-80). When an accused person is literally confronted by his opponent in this way, there is no question that the proceeding is adversarial. See Coleman, 399 U.S. at 8-9 (holding that preliminary hearing in Alabama was a critical stage because prosecutors present evidence and witnesses against the defendant); see also Gerstein, 420 U.S. at 123; Higazy v. Templeton, 505 F.3d 161, 172-73 (2d Cir. 2007).

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More specifically, the initial appearance in Proposition 100 cases meets this Courts definition of a critical stage as any pre-trial proceeding in which: (1) skilled counsel would be useful in helping the accused understand the legal confrontation; (2) the proceeding may test the merits of the case; or (3) an unrepresented defendants failure to pursue strategies or remedies may result in a loss of significant rights. See, e.g., United States v. Bohn, 890 F.2d 1079, 1080-81 (9th Cir. 1989). Although only one of these three factors need be present, Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006), all three are readily found in Proposition 100 initial appearances in Maricopa County. First, because of Defendants policies and practices implementing Proposition 100, initial appearances pose a risk of testing the merits of a defendants underlying criminal case. In such pretrial proceedings where certain rights might be sacrificed or lost, United States v. Wade, 388 U.S. 218, 225 (1967), the accuseds basic right to a fair trial may be jeopardized, Coleman, 399 U.S. at 7. See also Menefield v. Borg, 881 F.2d 696, 698 (9th Cir. 1989); Gerstein, 420 U.S. at 123. In many Arizona state cases, inquiries into immigration status serve a dual purpose for the prosecution; they result in a nonbondability ruling, and also may relate to the merits of the underlying criminal charge. Several Arizona substantive

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criminal statutes include unlawful immigration status as an element of the offense. See, e.g., A.R.S. 13-2319 (human smuggling); A.R.S. 13-2323 (participating in a human smuggling organization). Moreover, a defendants statements about his immigration status at an initial appearance could be used against him in a subsequent federal criminal prosecution for illegal entry or re-entry. ER 94, 114-15, 130, 544-45. The Sixth Amendment right to counsel is meant to protect against such selfincrimination. See Massiah v. United States, 377 U.S. 201, 206 (1964); see also Maryland v. Shatzer, 130 S. Ct. 1213, 1230 n.3 (2010) (Stevens, J., concurring) (quoting Arizona v. Roberson, 486 U.S. 675, 682 n.4 (1988)). Second, an accused personuncounseled and confronted with questions or accusations about his immigration statusmay make admissions without understanding the dire consequences. At a first appearance before the court following arrest, the defendant is unlikely to know that any statements about immigration status, or even nationality or place of birth, may be used against him not only to deny bail, but also on the merits of the criminal case. Aside from protecting against damage to the defense case, the Sixth Amendment also assures that the defendant understands the legal confrontation.

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Without counsel present, Proposition 100 initial appearances may result in the loss of significant rights for defendants, starting with pretrial detention for the duration of the case. This is a particularly dire circumstance for those defendants who are not actually illegal immigrants but are accused of being such by the prosecution. Pretrial detention in turn is likely to affect the outcome of the case. A criminal defendant who is held ineligible for bail, and who is offered a time-served sentence, may plead guilty simply to obtain his release from custody at the earliest opportunity. ER 386. This is precisely the sort of uncounseled circumstance that the Sixth Amendment seeks to prevent. V. THE PROPOSITION 100 LAWS ARE PREEMPTED BY FEDERAL IMMIGRATION LAW The district court erred as a matter of law in dismissing Plaintiffs Supremacy Clause claim. The Proposition 100 laws are preempted because they attempt to regulate immigration, intrude in fields exclusively occupied by congressional action, and conflict with the federal Immigration and Nationality Act. See Crosby v. Natl Foreign Trade Council, 530 U.S. 363 (2000); DeCanas v. Bica, 424 U.S. 351 (1976); Hines v. Davidowitz, 312 U.S. 52 (1941); United States v. Ariz., 641 F.3d 339 (9th Cir. 2011). The federal preemption doctrine stems from the Supremacy Clause, U.S. const. art. VI, cl. 2, and the fundamental principle of the Constitution
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[] that Congress has the power to preempt state law. Arizona, 641 F.3d at 344 (quoting Crosby, 530 U.S. at 372) (alteration in original). More specifically, in enacting immigration laws such as Proposition 100, states venture into an area that the Constitution commits to the exclusive control of the political branches of the federal government. See Takahashi v. Fish & Game Commn, 334 U.S. 410, 416 (1948) (The authority to control immigrationto admit or exclude aliensis vested solely in the Federal government.) (citing Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893)); Truax v. Raich, 239 U.S. 33, 42 (1915)); see U.S. Const. art. I, 8, cl. 4 (Congress has authority to establish an uniform Rule of Naturalization); U.S. Const. art. I, 8, cl. 3 (Congress has authority to regulate Commerce with foreign Nations). Congress has enacted a comprehensive set of immigration statutes, the Immigration and Nationality Act (INA). Thus, federal preemption analysis of state immigration laws differs from general preemption analysis in key respects. First, because [p]ower to regulate immigration is unquestionably exclusively a federal power, a state regulation of immigration is per se preempted by this constitutional power. DeCanas, 424 U.S. at 354-55. State laws that have an impact on immigration are preempted under this doctrine, unless the impact is purely speculative and indirect. Id. at 355-56.

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But even if a state law is not deemed to be a regulation of immigration, it may be preempted by federal law under general implied preemption standards. Proposition 100 is preempted by federal law if it regulates in a field that Congress intends to have occupied by federal law. See id. at 356-58; see Arizona, 641 F.3d at 345. But unlike in areas that have been traditionally regulated by the states, state immigration laws carry no presumption against federal preemption. Arizona, 641 F.3d at 348. And finally, state regulation is preempted if it is in conflict with federal law. Among other circumstances, a conflict exists when the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. DeCanas, 424 U.S. at 363 (internal quotation marks and citations omitted); Arizona, 641 F.3d at 345. A. Proposition 100 Is A Preempted State Regulation Of Immigration

Proposition 100 is an impermissible state regulation of immigration for at least two reasons. First, by jailing persons suspected of being in the United States illegally, Proposition 100 is centrally concerned with punishing perceived violations of federal immigration law and/or with detaining persons for immigration purposesand in either case is directly

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seeking to regulate immigration.18 Second, and related, Proposition 100 impermissibly creates a state-law classification of aliens for purposes of determining which aliens to incarcerate. Punishing or detaining a class of aliens because they are not authorized to be in the United States is at the core of regulating who should or should not be excluded from the United States. See DeCanas, 424 U.S. at 354-56. A state law that does so is preempted. See Toll v. Moreno, 458 U.S. 1, 12-13 (1982) (state regulation denying in-state tuition to certain noncitizens deemed lawfully admitted under federal law is preempted); Graham v. Richardson, 403 U.S. 365, 376-78 (1971) (State laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with these overriding national policies in an area constitutionally entrusted to the Federal Government.); Lozano v. City of Hazleton, 620 F.3d 170, 220-21, 224 (3d Cir. 2010) (local ordinance barring unlawfully present aliens from renting residential property was a preempted state regulation of immigration), cert. granted, vacated and remanded for reconsideration in light of Chamber of Commerce v. Whiting, 131 S. Ct.

Even if this Court were to hold that Proposition 100 is not aimed at punishing immigration violations (which it is), the Proposition 100 laws are nonetheless preempted because a state law that imposes detention for immigration enforcement purposes is a regulation of immigration, even absent punitive intent.
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1968, 1981 (2011), 131 S. Ct. 2958 (2011); accord Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp.2d 835, 855-56 (N.D. Tex. 2010), appeal pending. Part of the power to regulate immigration is to decide which aliens are unlawfully in the United States, how to punish them, and when to detain them. Second, Proposition 100s creation of a category of persons who have entered or remained in the United States illegally constitutes an impermissible regulation of immigration. Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the states. Nyquist v. Mauclet, 432 U.S. 1, 7 n.8 (1977) (citing Mathews v. Diaz, 426 U.S. 67, 8487 (1976)). The States enjoy no power with respect to the classification of aliens. Plyler v. Doe, 457 U.S. 202, 225 (1982) (citing Hines, 312 U.S. 52). As the Supreme Court held in DeCanas, a state cannot, on its own, determine who is or is not entitled to be present in the United States. League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 772 (C.D. Cal. 1995) (LULAC) (citing DeCanas, 424 U.S. at 355). Courts have struck down state-law classifications of aliens that are unmoored from federal classifications and determinations (among other reasons for preemption). See Equal Access Educ. v. Merten, 305 F. Supp.2d 585, 601-

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04 (E.D. Va. 2004); LULAC, 908 F. Supp. at 772-73; see also Hispanic Interest Coalition of Ala. v. Bentley, No. 5:11-cv-02484-SLB, Doc. 137, at 31 (N.D. Ala. Sept. 28, 2011). Proposition 100 creates a state-law category of persons who have entered or remained in the United States illegally. This term is not defined, but the implementing statute permits state courts to determine immigration status based on any evidence submitted by any law enforcement officer (or any other source, for that matter). A.R.S. 13-3961(A)(5)(a)(iv)(vi). Thus, the Proposition 100 laws specifically authorize state courts to make state-law determinations of immigration status, without regard to federal immigration law and federal status determinations. On that basis alone, Proposition 100 is preempted. See LULAC, 908 F. Supp. at 770-71, 773 (state provision requiring state actors to make independent determination as to whether person is illegally present in the U.S. is preempted). The district court reasoned that Proposition 100 is not a regulation of immigration because bail determinations do not determine who may be admitted to the U.S. or prescribe conditions under which legal entrants may remain or directly facilitate removal. ER 30:11-26. But Proposition 100 bail determinations operate precisely to impose detention on persons deemed

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by state courts to have entered or remained illegally in the United States. Such state-law classifications of aliens, and the imposition of detention under state law on such aliens, is forbidden as a regulation of immigration. B. Proposition 100 Intrudes On A Field Exclusively Occupied By Federal Law

The Proposition 100 laws are also preempted because they intrude in a field exclusively occupied by federal law. Congress has enacted a comprehensive scheme to address violations of federal immigration law, with provisions for arrests, detentions, prosecutorial discretion, penalties, removal proceedings, and discretionary relief from removal. See, e.g., 8 U.S.C. 1325 (penalties for crime of illegal entry), 1326 (penalties for illegal re-entry), 1226 (provisions pertaining to arrest and detention), 1227 (grounds for deportability), 1229a (vesting federal immigration judges with exclusive power to decide whether alien may be removed), 1231 (detention of persons after order of removal is issued), 1357(a)(2) (warrantless arrest authority of federal agents), 1357(d) (provision empowering federal immigration agency to issue a detainer to take custody of a person held in state custody on suspicion of controlled substances offense), 1357(g) (prescribing specific and limited conditions under which state officials may participate in enforcement of immigration laws); see also 18 U.S.C. 3142(d) (provision of federal bail statute addressing temporary detention of
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criminal defendants who are not U.S. citizens or lawful permanent residents). Proposition 100 intrudes in this area by imposing mandatory detention under state law against persons suspected of committing immigration law offenses. The district court erred in finding otherwise. See ER 31:10-18. The district court failed to consider the nature of the regulated subject matter, which in this case is a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also DeCanas, 424 U.S. at 356. The district court also erred in reasoning that Proposition 100 relates solely to pretrial detention for state crimes, and not to detention for immigration violations. ER 31:1332:2. Proposition 100 may operate in the realm of the state criminal justice system, but it is explicitly geared toward imposing incarceration because of violations of federal immigration law. But for their purported immigration violations, individuals subjected to Proposition 100 would be eligible for bail like any other defendant under Arizona law.

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C.

The Proposition 100 Laws Conflict With Federal Law

Finally, Proposition 100 is preempted because it conflicts with federal law. First, it effectively imposes punishment for illegal presence in the United States, in conflict with Congresss decision not to criminalize that conduct. See Arizona, 641 F.3d at 362; Gonzales v. City of Peoria, 722

F.2d 468, 476-77 (9th Cir. 1983), overruled on other grounds by HodgersDurgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). Second, even if Proposition 100 were not viewed as imposing punishment, it effectively deems a broad range of non-citizens to be non-bailable, when Congress has provided a system for immigration detention that generally permits release of such persons on bond during removal proceedings. See, e.g., 8 U.S.C. 1226(a). Congress also has specifically provided that in federal criminal cases, defendants who are not U.S. citizens or lawful permanent residents should be treated like any other defendant for bail purposes, except that if they are found to pose a flight risk or danger to the community, they may be temporarily detained for up to ten days while federal immigration authorities decide whether to take the person immediately into custody. See 18 U.S.C. 3142(d). Arizona presumptively assumes that all such persons are such a great flight risk that no conditions of release will ensure appearance, in

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conflict with Congresss decision that they may be released on bond or even on their own recognizance. See ER 398. These aspects of Proposition 100 also require a finding of preemption because they stand as obstacles to the full achievement of Congresss purposes. First, Proposition 100 creates the risk that persons who would be released by a federal immigration judge will be ordered detained by a state judge under Proposition 100. Second, Proposition 100 creates the very substantial risk that Arizona state courts will deem persons to be illegal immigrants when the federal system would not so classify them.19 The district court erred in finding no conflict preemption on the asserted ground that Proposition 100 does not impose incarceration for unlawful presence or other federally defined immigration violations, but merely denies release after a person is charged with a serious crime. ER 31:22-32:2. But this misses the point that while the context for Proposition 100 is criminal pretrial detention, the effect and purpose of Proposition 100 is to incarcerate individuals because of their purported immigration

Mistakes by state officers and courts are virtually guaranteed. Immigration status determinations are notoriously complex. See Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010); Castro-O'Ryan, 847 F.2d at 1312. And indeed, the record below demonstrates that erroneous immigration status determinations have been made in Maricopa County under Proposition 100. ER 373-74; 383-84; 407; 439-40.

19

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violations. That Proposition 100 is a pretrial detention law does not justify it under preemption analysis, any more than a state law that held that any illegal immigrant in civil commitment proceedings is deprived of a right to a hearing would be a legitimate mental health regulation. In both cases, the nature of the state-law detention regimecriminal pretrial detention or civil commitmentis a matter for state regulation, but when the state uses those state detention regimes to address illegal immigration, those laws are preempted.

CONCLUSION For the foregoing reasons, the district courts order granting summary judgment for Defendants and denying summary judgment for Plaintiffs, and the order granting Defendants motion to dismiss Plaintiffs federal preemption claim, should be reversed.

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STATEMENT OF RELATED CASES Plaintiffs-Appellants are unaware of any pending related cases before this Court as defined in Ninth Circuit Rule 28-2.6.

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because the attached brief contains 13,886 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii),

Dated:

October 26, 2011 San Francisco, California

/s/ Cecillia D. Wang CECILLIA D. WANG

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 28, 2011. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. I declare under penalty of perjury that the above is true and correct.

Dated:

October 28, 2011 San Francisco, California

/s/ Cecillia D. Wang CECILLIA D. WANG

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ADDENDUM

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Addendum A Proposition 100 Laws

Arizona Constitution, article 2, section 22: A. All persons charged with crime shall be bailable by sufficient sureties, except: .... 4. For serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge. Arizona Revised Statutes section 13-3961: A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following: .... 5. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally. For the purposes of this paragraph: (a) The court shall consider all of the following in making a determination that a person has entered or remained in the United States illegally: (i) Whether a hold has been placed on the arrested person by the United States immigration and customs enforcement. (ii) Any indication by a law enforcement agency that the person is in the United States illegally.

(iii) Whether an admission by the arrested person has been obtained by the court or a law enforcement agency that the person has entered or remained in the United States illegally. (iv) Any information received from a law enforcement agency pursuant to 13-3906.
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Addendum A Proposition 100 Laws

(v) Any evidence that the person has recently entered or remained in the United States illegally. (vi) Any other relevant information that is obtained by the court or that is presented to the court by a party or any other person. (b) Serious felony offense means any class 1, 2, 3 or 4 felony or any violation of 28-1383. Arizona Rules of Criminal Procedure, Rule 7.2 (16A Ariz. Rev. Stat. Rules Crim. Proc., R. 7.2): .... b. Before Conviction; Persons Charged With an Offense Not Bailable as a Matter of Right. A person shall not be released on bail if the court finds the person is not bailable pursuant to A.R.S. Const. Art. 2, 22 and A.R.S. 13-3961. If the allegation involves A.R.S. 13-3961(A)(5), the person shall not be considered bailable if the court finds (1) that the proof is evident or the presumption great that the person committed a serious offense, and (2) probable cause that the person entered or remained in the United States illegally. ....

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule Ala. Const. art. I, [A]ll persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof 16 is evident or the presumption great[.] Ala. Code 3113-18 (Enacted June 2, 2001) (b) A verification inquiry, pursuant to 8 U.S.C. 1373(c), shall be made within 48 hours to the Law Enforcement Support Center of the United States Department of Homeland Security or other office or agency designated for that purpose by the federal government. If the person is determined to be an alien unlawfully present in the United States, the person shall be considered a flight risk and shall be detained until prosecution or until handed over to federal immigration authorities. (Legal challenge pending; see Hispanic Interest Coalition of Ala. v. Bentley, No. 5:11-cv-02484-SLB (N.D. Ala.)) The accused is entitled . . . to be released on bail, except for capital offenses when the proof is evident or the presumption great[.] All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.

Alaska Const. art. I, 11

Ark. Const. art. II, 8

Cal. Const. art. I, A person shall be released on bail by sufficient sureties, 12 except for: (a) Capital crimes when the facts are evident or the presumption great; (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.
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Addendum B State Laws Categorically Limiting Release on Bail Provision Colo. Const. art. II, 19; see also Colo. Rev. Stat. 16-4-101 Rule (1) All persons shall be bailable by sufficient sureties pending disposition of charges except: (a) For capital offenses when proof is evident or presumption is great; or (b) When, after a hearing held within ninety-six hours of arrest and upon reasonable notice, the court finds that proof is evident or presumption is great as to the crime alleged to have been committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases: (I) A crime of violence, as may be defined by the general assembly, alleged to have been committed while on probation or parole resulting from the conviction of a crime of violence; (II) A crime of violence, as may be defined by the general assembly, alleged to have been committed while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found; (III) A crime of violence, as may be defined by the general assembly, alleged to have been committed after two previous felony convictions, or one such previous felony conviction if such conviction was for a crime of violence, upon charges separately brought and tried under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States which, if committed in this state, would be a felony; or .... (2) Except in the case of a capital offense, if a person is denied bail under this section, the trial of the person shall be commenced not more than ninety days after the date on which bail is denied. If the trial is not commenced within ninety days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of the bail for the person.

Conn. Const. art. a. In all criminal prosecutions, the accused shall have a right . I, 8(a) . . to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great[.]
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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule Del. Const. art. I, All prisoners shall be bailable by sufficient sureties, unless 12 for capital offenses when the proof is positive or the presumption great[.] Fla. Const. art. I, Unless charged with a capital offense or an offense 14 punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. Idaho Const. art. I, 6 All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great.

Ill. Const art. I, All persons shall be bailable by sufficient sureties, except for 9 the following offenses where the proof is evident or the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person. Ind. Const. art. I, Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, 17 when the proof is evident, or the presumption strong. Ind. Code 35-33- (a) Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable. 8-2 (b) A person charged with murder has the burden of proof that he should be admitted to bail.

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Addendum B State Laws Categorically Limiting Release on Bail Provision Kan. Const. Bill of Rights 9 Rule All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. All prisoners shall be bailable by sufficient securities, unless for capital offenses when the proof is evident or the presumption great[.] (A) . . . . Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great. . . . (B) However, a person charged with a crime of violence as defined by law or with production, manufacture, distribution, or dispensing or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance as defined by the Louisiana Controlled Dangerous Substances Law, and the proof is evident and the presumption of guilt is great, shall not be bailable if, after a contradictory hearing, the judge or magistrate finds by clear and convincing evidence that there is a substantial risk that the person may flee or poses an imminent danger to any other person or the community.

Ky. Const. 16

La. Const. art. I, 18

Me. Const. art. I, No person before conviction shall be bailable for any of the crimes which now are, or have been denominated capital 10 offenses since the adoption of the Constitution, when the proof is evident or the presumption great, whatever the punishment of the crimes may be. See also 15 ME. REV. STAT. 1027 (2003) (making provisions for bail for formerly capital offenses). Md. Crim. P. 5-202(a)-(d); Md. Rules, Cr. R. 4-216 Mass. Gen. Law 276 20D Too voluminous to set forth; see statute and rule.

Unless the offence with which the person arrested is charged is shown to be an offence punishable by death or life
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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule imprisonment under the laws of the state in which it was committed, such court or justice may admit such person to bail by bond or undertaking, with sufficient sureties[.]

Mich. Const. art. All persons shall, before conviction, be bailable by sufficient I, 15 sureties, except that bail may be denied for the following persons when the proof is evident or the presumption great: (a) A person who, within the 15 years immediately preceding a motion for bail pending the disposition of an indictment for a violent felony or of an arraignment on a warrant charging a violent felony, has been convicted of 2 or more violent felonies under the laws of this state or under substantially similar laws of the United States or another state, or a combination thereof, only if the prior felony convictions arose out of at least 2 separate incidents, events, or transactions. (b) A person who is indicted for, or arraigned on a warrant charging, murder or treason. (c) A person who is indicted for, or arraigned on a warrant charging, criminal sexual conduct in the first degree, armed robbery, or kidnapping with intent to extort money or other valuable thing thereby, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person. (d) A person who is indicted for, or arraigned on a warrant charging, a violent felony which is alleged to have been committed while the person was on bail, pending the disposition of a prior violent felony charge or while the person was on probation or parole as a result of a prior conviction for a violent felony. If a person is denied admission to bail under this section, the trial of the person shall be commenced not more than 90 days after the date on which admission to bail is denied. If the trial is not commenced within 90 days after the date on which admission to bail is denied and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of bail for the person. As used in this section, violent felony means a felony, an element of which involves a violent act or threat of a violent act against any other person.
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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule Minn. Const. art. All persons before conviction shall be bailable by sufficient I, 7 sureties, except for capital offenses when the proof is evident or the presumption great. Miss. Const. art. III, 29 (1) Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses (a) when the proof is evident or presumption great; or (b) when the person has previously been convicted of a capital offense or any other offense punishable by imprisonment for a maximum of twenty (20) years or more. .... (3) In the case of offenses punishable by imprisonment for a maximum of twenty (20) years or more or by life imprisonment, a county or circuit court judge may deny bail for such offenses when the proof is evident or the presumption great upon making a determination that the release of the person or persons arrested for such offense would constitute a special danger to any other person or to the community or that no condition or combination of conditions will reasonably assure the appearance of the person as required. (4) In any case where bail is denied before conviction, the judge shall place in the record his reasons for denying bail. Any person who is charged with an offense punishable by imprisonment for a maximum of twenty (20) years or more or by life imprisonment and who is denied bail prior to conviction shall be entitled to an emergency hearing before a justice of the Mississippi Supreme Court. [A]ll persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great. 2. There shall be a presumption that releasing the person under any conditions as provided by section 544.455 shall not reasonably assure the appearance of the person as required if the circuit judge or associate circuit judge reasonably believes that the person is an alien unlawfully present in the United States. If such presumption exists, the person shall be committed to the jail, as provided in subsection 1 of this
Addendum B-6

Mo. Const. art I, 20

Mo. Stat. 544.470(2) (Enacted July 7, 2008)

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule section, until such person provides verification of his or her lawful presence in the United States to rebut such presumption. If the person adequately proves his or her lawful presence, the circuit judge or associate circuit judge shall review the issue of release, as provided under section 544.455, without regard to previous issues concerning whether the person is lawfully present in the United States. If the person cannot prove his or her lawful presence, the person shall continue to be committed to the jail and remain until discharged by due course of law. But see State v. Villegas-Cortez, No. 09BU-CR010191-01, Mo. Cir. Ct., Buchanan Co., Tr. of Hrg., Sept. 21, 2009) (application of statute to defendant would violate the Missouri constitution and the Federal constitution; [the] Missouri constitution . . . does provide that every defendant has the right to bail except in capital offenses) (available at Doc. 181-9, pp. 2-27). All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great. All persons shall be bailable by sufficient sureties; unless for Capital Offenses or murders punishable by life imprisonment without possibility of parole when the proof is evident or the presumption great.

Neb. Const. art. I, 9

Nev. Const. art. I, 7

N.H. Rev. Stat. Any person arrested for an offense punishable by up to life in prison, where the proof is evident or the presumption great, 597:1-c shall not be allowed bail. N.H. Rev. Stat. sec 597:1-d I. If there is a judicial finding of probable cause to believe that a person has committed a violation of RSA 630, RSA 631, RSA 632-A:2-4 or RSA 633:1-3 from an arrest warrant affidavit or an affidavit issued pursuant to district court administrative order number 91-03 or any other district court administrative order which supercedes it and the person is on probation or parole for a conviction of a violent crime listed in RSA 651:4-a or a substantially similar crime in any state or
Addendum B-7

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule federal court in this or any other state, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States, it is presumed that release on bail and imposition of any condition or set of conditions listed in RSA 597:2 will not reasonably assure the appearance of the person as required and will endanger the safety of the person or of any other person or the community. II. The court shall not release such person on bail unless the court finds by a preponderance of the evidence that some condition or set of conditions found in RSA 597:2 will assure the person's appearance and assure that release will not pose a danger to the safety of the person or of any person or the community. (Addressing probationers and parolees).

N.J. Const. art. I, All persons shall, before conviction, be bailable by sufficient 11 sureties, except for capital offenses when the proof is evident or presumption great. N.M. Const. art. II, 13 All persons shall, before conviction be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great and in situations in which bail is specifically prohibited by this section. . . . Bail may be denied by the district court for a period of sixty days after the incarceration of the defendant by an order entered within seven days after the incarceration, in the following instances: A. the defendant is accused of a felony and has previously been convicted of two or more felonies, within the state, which felonies did not arise from the same transaction or a common transaction with the case at bar; B. the defendant is accused of a felony involving the use of a deadly weapon and has a prior felony conviction, within the state. The period for incarceration without bail may be extended by any period of time by which trial is delayed by a motion for a continuance made by or on behalf of the defendant. An appeal from an order denying bail shall be given preference over all other matters.

Addendum B-8

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule N.C. Gen. Stat. (a) A defendant charged with any crime, whether capital or noncapital, who is alleged to have committed this crime while 15A-533 still residing in or subsequent to his escape or during an unauthorized absence from involuntary commitment in a mental health facility designated or licensed by the Department of Health and Human Services, and whose commitment is determined to be still valid by the judge or judicial officer authorized to determine pretrial release to be valid, has no right to pretrial release. In lieu of pretrial release, however, the individual shall be returned to the treatment facility in which he was residing at the time of the alleged crime or from which he escaped or absented himself for continuation of his treatment pending the additional proceedings on the criminal offense. (b) A defendant charged with a noncapital offense must have conditions of pretrial release determined, in accordance with G.S. 15A-534. (c) A judge may determine in his discretion whether a defendant charged with a capital offense may be released before trial. If he determines release is warranted, the judge must authorize release of the defendant in accordance with G.S. 15A-534. (d) There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community if a judicial official finds the following: (1) There is reasonable cause to believe that the person committed an offense involving trafficking in a controlled substance; (2) The drug trafficking offense was committed while the person was on pretrial release for another offense; and (3) The person has been previously convicted of a Class A through E felony or an offense involving trafficking in a controlled substance and not more than five years has elapsed since the date of conviction or the person's release from prison for the offense, whichever is later. (e) There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community, if a judicial official
Addendum B-9

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule finds the following: (1) There is reasonable cause to believe that the person committed an offense for the benefit of, at the direction of, or in association with, any criminal street gang, as defined in G.S. 14-50.16; (2) The offense described in subdivision (1) of this subsection was committed while the person was on pretrial release for another offense; and (3) The person has been previously convicted of an offense described in G.S. 14-50.16 through G.S. 14-50.20, and not more than five years has elapsed since the date of conviction or the person's release for the offense, whichever is later. Persons who are considered for bond under the provisions of subsections (d) and (e) of this section may only be released by a district or superior court judge upon a finding that there is a reasonable assurance that the person will appear and release does not pose an unreasonable risk of harm to the community. N.D. Const. art. I, 11 All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted. The general assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(B) of the
Addendum B-10

Ohio Const. art. I, 9

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule Constitution of the state of Ohio. A. All persons shall be bailable by sufficient sureties, except that bail may be denied for: 1. capital offenses when the proof of guilt is evident, or the presumption thereof is great; 2. violent offenses; 3. offenses where the maximum sentence may be life imprisonment or life imprisonment without parole; 4. felony offenses where the person charged with the offense has been convicted of two or more felony offenses arising out of different transactions; and 5. controlled dangerous substances offenses where the maximum sentence may be at least ten (10) years imprisonment. On all offenses specified in paragraphs 2 through 5 of this section, the proof of guilt must be evident, or the presumption must be great, and it must be on the grounds that no condition of release would assure the safety of the community or any person. A. Except as otherwise provided by law, bail, by sufficient sureties, shall be admitted upon all arrests in criminal cases where the offense is not punishable by death and in such cases it may be taken by any of the persons or courts authorized by law to arrest, to imprison offenders or to perform pretrial services, or by the clerk of the district court or his or her deputy, or by the judge of such courts. B. In criminal cases where the defendant is currently an escaped prisoner from the Department of Corrections, the defendant must be processed back into the Department of Corrections prior to bail being set on new criminal charges. C. All persons shall be bailable by sufficient sureties, except that bail may be denied for: 1. Capital offenses when the proof of guilt is evident, or the presumption thereof is great; 2. Violent offenses; 3. Offenses where the maximum sentence may be life imprisonment or life imprisonment without parole;
Addendum B-11

Okla. Const. art. 2, 8

22 Okla. Stat. 1101

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule 4. Felony offenses where the person charged with the offense has been convicted of two or more felony offenses arising out of different transactions; and 5. Controlled dangerous substances offenses where the maximum sentence may be at least ten (10) years' imprisonment. On all offenses specified in paragraphs 2 through 5 of this subsection, the proof of guilt must be evident, or the presumption must be great, and it must be on the grounds that no condition of release would assure the safety of the community or any person. D. There shall be a rebuttable presumption that no condition of release would assure the safety of the community if the state shows by clear and convincing evidence that the person was arrested for a violation of Section 741 of Title 21 of the Oklahoma Statutes. Bail, by sufficient sureties, may be admitted upon all arrests in criminal cases where the punishment may be death, unless the proof is evident or the presumption great; and in such cases it shall be taken only by the Criminal Court of Appeals or a district or superior court, or by a justice or judge thereof, who shall exercise their discretion therein, having regard to the nature and circumstances of the offense, and of the evidence and to the usages of law; but if the case has been tried by jury, and the jury have disagreed on their verdict, then the above presumption is removed, and the defendant shall thereupon be entitled to bail, unless it shall appear to the court or judge thereof, by due proof, that such disagreement was occasioned by the misconduct of the jury. Offences (sic), except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong. (2)(a) When the defendant is charged with murder, aggravated murder or treason, release shall be denied when the proof is evident or the presumption strong that the person is guilty.
Addendum B-12

22 Okla. Stat. 1102

Or. Const. art. I, 14

Or. Rev. Stat. 135.240

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Addendum B State Laws Categorically Limiting Release on Bail Provision Pa. Const. art. I, 14 Rule All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great[.] All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, or for offenses involving the use or threat of use of a dangerous weapon by one already convicted of such offense or already convicted of an offense punishable by imprisonment for life, or for offenses involving the unlawful sale, distribution, manufacture, delivery, or possession with intent to manufacture, sell, distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great.

R.I. Const. art. I, 9

R.I. Gen. Laws Whenever a person is charged with, or indicted or informed against, for an offense involving the unlawful sale, 12-13-5.1 distribution, manufacture, delivery, or possession with intent to manufacture, sell, distribute, or deliver any controlled substance, or by possession of any controlled substance punishable by imprisonment for ten (10) years or more, and the state objects to the setting of bail pursuant to the R.I. Const., Art. I, Sec. IX, if the court determines that the proof of guilt is evident or the presumption great, then it shall be presumed that the person is a danger to the safety of the community unless that presumption is rebutted by the defendant. S.C. Const. art. All persons shall be, before conviction, bailable by sufficient I, 15 sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event.
Addendum B-13

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Addendum B State Laws Categorically Limiting Release on Bail Provision Tenn. Const. art. I, 15; Rule [A]ll prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great. Before trial, all defendants shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the
Addendum B-14

Tenn. Code 40-11-102

Tex. Const. art. I, 11

Tex. Const. art. I, 11a

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals. (b) In this section: (1) Violent offense means: (A) murder; (B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault; (C) aggravated kidnapping; or (D) aggravated robbery. (2) Sexual offense means: (A) aggravated sexual assault; (B) sexual assault; or (C) indecency with a child. (1) All persons charged with a crime shall be bailable except: (a) persons charged with a capital offense when there is substantial evidence to support the charge; or (b) persons charged with a felony while on probation or parole, or while free on bail awaiting trial on a previous felony charge, when there is substantial evidence to support the new felony charge; or (c) persons charged with any other crime, designated by statute as one for which bail may be denied, if there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community or is likely to flee the jurisdiction of the court if released on bail.

Utah Const. art. I, 8

Va. Code 19.2- A. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be 120 admitted to bail by a judicial officer, unless there is probable cause to believe that: 1. He will not appear for trial or hearing or at such other time and place as may be directed, or
Addendum B-15

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule 2. His liberty will constitute an unreasonable danger to himself or the public. B. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with: 1. An act of violence as defined in 19.2-297.1; 2. An offense for which the maximum sentence is life imprisonment or death; 3. A violation of 18.2-248, 18.2-248.01, 18.2-255, or 18.2255.2 involving a Schedule I or II controlled substance if (i) the maximum term of imprisonment is 10 years or more and the person was previously convicted of a like offense or (ii) the person was previously convicted as a drug kingpin as defined in 18.2-248; 4. A violation of 18.2-308.1, 18.2-308.2, or 18.2-308.4 and which relates to a firearm and provides for a mandatory minimum sentence; 5. Any felony, if the person has been convicted of two or more offenses described in subdivision 1 or 2, whether under the laws of the Commonwealth or substantially similar laws of the United States; 6. Any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction; 7. An offense listed in subsection B of 18.2-67.5:2 and the person had previously been convicted of an offense listed in 18.2-67.5:2 or a substantially similar offense under the laws of any state or the United States and the judicial officer finds probable cause to believe that the person who is currently charged with one of these offenses committed the offense charged; 8. A violation of 18.2-374.1 or 18.2-374.3 where the offender has reason to believe that the solicited person is under 15 years of age and the offender is at least five years older than the solicited person; 9. A violation of 18.2-46.2, 18.2-46.3, 18.2-46.5, or 18.246.7;
Addendum B-16

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Addendum B State Laws Categorically Limiting Release on Bail Provision Rule 10. A violation of 18.2-36.1, 18.2-51.4, 18.2-266, or 46.2341.24 and the person has, within the past five years of the instant offense, been convicted three times on different dates of a violation of any combination of these Code sections, or any ordinance of any county, city, or town or the laws of any other state or of the United States substantially similar thereto, and has been at liberty between each conviction; 11. A second or subsequent violation of 16.1-253.2 or 18.260.4 or a substantially similar offense under the laws of any state or the United States; 12. A violation of subsection B of 18.2-57.2; or 13. A violation of subsection C of 18.2-460 charging the use of threats of bodily harm or force to knowingly attempt to intimidate or impede a witness. C. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is being arrested pursuant to 19.2-81.6. D. The court shall consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal of the presumption against bail described in subsection B, whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the public: 1. The nature and circumstances of the offense charged; 2. The history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in a criminal street gang as defined in 18.2-46.1, and record concerning appearance at court proceedings; and 3. The nature and seriousness of the danger to any person or the community that would be posed by the person's release. E. The judicial officer shall inform the person of his right to appeal from the order denying bail or fixing terms of bond or recognizance consistent with 19.2-124. . . .

Addendum B-17

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Addendum B State Laws Categorically Limiting Release on Bail Provision VA. CODE 19.2-120.1 Rule A. In addition to the presumption against the admission to bail under subsection B of 19.2-120, the judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if (i) the person is currently charged with an offense listed in subsection A of 19.2-297.1, subsection C of 17.1-805, any offense under Chapter 4 ( 18.2-30 et seq.) of Title 18.2 except any offense under subsection A of 18.2-57.2, any felony offense under Article 1 ( 18.2-247 et seq.) of Chapter 7 of Title 18.2, or any offense under Article 2 ( 18.2-266 et seq.), or any local ordinance substantially similar thereto, 4 ( 18.2-279 et seq.), 5 ( 18.2288 et seq.), 6 ( 18.2-299 et seq.), or 7 ( 18.2-308 et seq.) of Chapter 7 of Title 18.2, and (ii) the person has been identified as being illegally present in the United States by the United States Immigration and Customs Enforcement. B. Notwithstanding subsection A, no presumption shall exist under this section as to any misdemeanor offense, or any felony offense under Article 1 ( 18.2-247 et seq.) of Chapter 7 of Title 18.2, unless the United States Immigration and Customs Enforcement has guaranteed that, in all such cases in the Commonwealth, it will issue a detainer for the initiation of removal proceedings and agree to reimburse for the cost of incarceration from the time of the issuance of the detainer.

Wash. Const. art. All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, I, 20 or the presumption great. Bail may be denied for offenses punishable by the possibility of life in prison upon a showing by clear and convincing evidence of a propensity for violence that creates a substantial likelihood of danger to the community or any persons, subject to such limitations as shall be determined by the legislature. W. Va. Code 62-1C-1 (a) A person arrested for an offense not punishable by life imprisonment shall be admitted to bail by the court or magistrate. A person arrested for an offense punishable by life imprisonment may, in the discretion of the court that will have jurisdiction to try the offense, be admitted to bail.
Addendum B-18

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Addendum B State Laws Categorically Limiting Release on Bail Provision Wyo. Const. art. I, 14 Rule All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. (b) A person arrested for an offense punishable by death may be admitted to bail at the discretion of the authorized judicial officer as defined by W.S. 7-10-104, except the defendant shall not be admitted to bail if the proof is evident or the presumption great in the case.

Wyo. Stat. 710-101

Addendum B-19