Questions arise over jailing of SB 1070 violators

by JJ Hensley - Jun. 11, 2010 12:00 AM
The Arizona Republic
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Although most of the attention on Arizona's new immigration law has focused on the factors allowing police to stop and question illegal-immigrant suspects, there has been little discussion about what happens after someone is cited for failing to carry immigration documents.

Many legal questions remain as police agencies, prosecutors and the court system continue to sort that out. But this much is known: It is likely to substantially raise local authorities' costs for housing inmates.


The misdemeanor offense of failing to carry documents is one of the hallmarks of the controversial legislation and the key factor that makes being in the country illegally a state crime.

The law states that an officer engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.

Various parts of the criminal-justice system are still trying to determine how they will handle cases after the measure takes effect July 29.

Although the documents crime is a misdemeanor punishable by up to 20 days in jail and a $100 fine, prosecutors and police officers say it is a misdemeanor unlike any other.


To arrest or not?

In general, people suspected of committing a misdemeanor are cited and released pending a court appearance. The statutory language defining some misdemeanors, such as domestic violence, gives officers the authority to arrest a suspect.

Under Arizona's new law, however, a violation does not guarantee an arrest or a trip to jail.

Under the current system, crime suspects arrested in Maricopa County have their immigration status checked when they are booked into jail. If the crime is serious enough, suspects who are in the country illegally also are denied bond.

The law requires agencies to contact a federal immigration agent or a federally authorized police officer to confirm the residency status of suspects.

Beyond that, it is unclear what role federal Immigration and Customs Enforcement agents may play.

Currently, police who encounter illegal immigrants can contact ICE agents to ask them to take custody.

Privately, police officers say they do not think federal agents will be able to take custody of everyone suspected of violating the state's misdemeanor immigration statute. ICE has publicly stated that it has set enforcement priorities for illegal immigrants. The top priorities are taking custody of those suspected of rape, murder and other serious crimes.

In cases where they cannot take custody of a suspect, ICE agents typically will release suspects with a notice to appear for a federal immigration hearing.

An unanswered question in the ongoing legal discussions is this: If ICE can release people suspected of violating federal law, can police agencies release suspects under the state law?

"That clearly is going to be a court-determined answer," said Lyle Mann, deputy director of the Arizona Peace Officer Standards and Training Board, the agency tasked with training police officers on how to enforce the new law.

It will be up to each police agency to come up with a policy on how to handle the misdemeanor offenders.

Officers are generally forbidden from issuing citations if police can't accurately identify the suspect.

In those cases, the suspects will likely be booked into jail to await a hearing in front of a judge.


After an arrest

If suspected violators are arrested, booking them into county jails on a state misdemeanor charge will come at a cost. In Maricopa County, for example, every arresting agency has to pay $192 to book misdemeanor suspects into county jail and $72 a day to house each suspect.

Maricopa County Sheriff Joe Arpaio already has vowed that his deputies will book anyone suspected of violating the misdemeanor immigration violation, a signal that the county's costs for locking up inmates will go up.

Suspects will have a right to a trial unless they plead guilty first.

All suspects booked into jail get an initial appearance in front of a judge within 24 hours. These appearances will most likely be in local or city courts.

In normal criminal cases, the defendant enters a plea during this initial appearance. The judge then determines whether the suspect should be released and trusted to show up for a later court date, released on bond or held in jail until trial.

State court administrators are now working to determine if they need new training or procedures to handle these pre-trial hearings.

"This isn't about how to rule (on guilt or innocence)," said Jennifer Liewer, a spokeswoman for the Arizona Supreme Court.

Ultimately, the determination will be up to each judge, so the standard practice could vary widely.

The prospect of illegal-immigrant suspects being released until trial may not sit well with supporters of the legislation.


Trial and conviction

A suspect's arrival for trial will spawn another set of unanswered questions.

A group of Arizona prosecutors is working to come up with a uniform approach to handling the cases.

"We're not even sure at this point what documentation we're going to need to prove (suspects are) in the country illegally, because the burden of proof is on us," Mesa prosecutor John Pombier said.

Assuming the suspect is found guilty, the next issue is sentencing.

Misdemeanors like the state's "failure to carry documents" law typically come with a sentencing range of up to six months and fines of up to $2,500. But in one of the revisions to Senate Bill 1070, legislators stipulated a maximum sentence of up to 20 days and a fine of up to $100 for violating the law. Judges will determine if those convicted are released based on time they've already served in jail - assuming they were jailed at all - or will serve more time before being handed over to federal immigration agents.

If a suspect got the maximum 20-day sentence for a misdemeanor immigration violation, the jail costs for the arresting agency would exceed $1,600.

In the past three years, the Maricopa County Sheriff's Office turned over more than 2,000 people to ICE who had not committed a state crime but were suspected of being in the country illegally. Those are exactly the type of people the new law targets.

Housing that many defendants in county jails on the maximum sentence for the misdemeanor documents charge would cost more than $3 million.

The potential for cities, coping with a struggling economy, to face a new expense has police agencies trying to determine how their officers can live up to the law while trying to balance their cities' budgets.

For now, cities, prosecutors and court officials continue to try to work out their procedures. Says Pombier: "It's brand new to all of us."



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