May 16, 2010 |

Arizona's new immigration law raises questions regarding costs, trials
Ensuring defendants get to court among concerns
1 comment

by Michael Kiefer - May. 16, 2010 12:00 AM

Arizona's controversial new immigration law raises questions about who pays to bring the cases to trial, how defendants will be tried and how authorities will ensure they actually make it to court.

Senate Bill 1070 and House Bill 2162, which fine-tuned the law, define three new crimes. The bills, signed into law by Gov. Jan Brewer, make it illegal to:


• Willfully fail to carry an alien-registration document if you are not a U.S. citizen.

• To pick up, or be picked up as, a day laborer if it impedes traffic.

• To knowingly transport an illegal immigrant in a vehicle; conceal, harbor or shield an illegal immigrant from detection; or encourage an illegal immigrant to come to or stay in Arizona.

All are misdemeanors. Misdemeanors carry a maximum punishment of six months in jail and a $2,500 fine, and fines set for the new crimes are lower.

Because they are misdemeanors, the new crimes will be tried in city courts or county justice-of-the-peace courts, depending on the law-enforcement agency making the arrest.

The new law mandates law-enforcement officers to ask about immigration status, when practicable, if they have reason to suspect someone they have stopped, detained or arrested is in the country illegally.

For example, if local police stop someone for a traffic violation and the situation gives the officer "reasonable suspicion" that the person is in the country illegally, they would seek confirmation of that from federal immigration authorities. If it is confirmed, officers might take that person directly to federal immigration authorities. If not, they would take them to local jail, and the case ultimately would go to a justice or municipal court.

Similarly, if city police stop a motorist for a traffic infraction and suspect that the motorist's passenger is in the country illegally, both could be arrested. Their cases would go to a municipal court. If arrested by a sheriff's deputy, the case would go to a justice court.

"This is an unfunded mandate on so many levels," said Phoenix Mayor Phil Gordon, who has been an outspoken critic of the new law. "That will cost millions of dollars which cities don't have, which will come out of police budgets and lessen the ability to arrest violent criminals."

But that view is refuted by former Maricopa County Attorney Andrew Thomas, who helped write the bill.

"Every year, the Legislature passes new criminal laws, and it's not the place of law enforcement to refuse to enforce those laws or complain about them," he said.

Court officials cannot predict the caseloads the new law would generate, nor how it would affect them.

"It's all speculation at this point," said Phoenix City Prosecutor Aaron Carreon-Ainsa. "We've never tried cases like this before."

That uncertainty was echoed by county Justice Courts spokesman Terry Stewart.

The Arizona Supreme Court, which has executive control over all Arizona courts, is studying the issue.

"As with all legislation that comes to the courts, we're reviewing the bill and making a determination if there will be an impact or if there needs to be guidance provided to the courts," spokeswoman Jennifer Liewer said.

Even getting defendants who are illegal immigrants to court may be problematic. State law forbids bond to illegal immigrants accused of serious crimes, which the Legislature defines as Class 4 felonies or lower, with lower numbers designating more serious crimes. Because the new crimes are misdemeanors, they do not qualify as serious under that definition.

While the new law says that persons can be held for as long as it takes to ascertain their immigration status, Liewer said it was unconstitutional to hold a person without bond for a misdemeanor once that status has been determined.

They could be charged with being in the state illegally, but they would have to be offered bond pending trial, which could make it difficult to assure they show up for court and, if convicted, are deported.

Under some circumstances, however, they also could be turned over to federal immigration authorities immediately. That might assure deportation but jeopardize their ability to be tried in court.

Paul Charlton, a former U.S. Attorney for Arizona, told The Arizona Republic that once immigrants go into U.S. Immigration and Customs Enforcement custody, they often are deported - whether or not their cases have been adjudicated in court.

Thomas, who resigned as county attorney to run for Arizona attorney general, acknowledged the problem.

"Those offenders have to be released on bail or turned over to (immigration officials), unless you repeal the right to bond altogether for illegal immigrants," he said. "I don't think that would be upheld by the federal courts."

The important thing, Thomas said, is that the law "gives local law enforcement clear legal authority to arrest illegal immigrants."

The deportation factor could trigger appeals to higher courts to decide whether the immigration crimes should be tried before a judge alone or before juries. Defense attorneys often prefer jury trials because the jury may be more lenient with defendants than a judge.

Neal Bassett, an attorney who has gone to the Arizona Court of Appeals several times to obtain jury trials for misdemeanors, said the crime of failing to carry alien-registration documents might qualify for jury trial, because a conviction would result in deportation.

Consequently, early cases likely would trigger requests for jury trials from defendants.




http://www.azcentral.com/arizonarepubli ... costs.html