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Thursday, February 5, 2009

Bill would deny bail for illegal immigrants

Posted by on Thu, Feb 5, 2009 at 7:17 PM

The North Carolina Criminal Procedure Act, subject to the the Eighth Amendment of the U.S. Constitution, guarantees that all defendants accused of non-capital crimes can post bail, and be released, pending their trial. A bill introduced today by two first-term state representatives would remove this protection for illegal immigrants convicted of any one of a wide range of criminal and misdemeanor offenses, including moving traffic violations.

The only other non-capital offenses for which defendants are not guaranteed bond in North Carolina are drug trafficking and street-level gang charges, as defined by the N.C. Gang Suppression Act. However, in order for bond to be denied in these cases, defendants must also have been convicted of similar charges (or released from prison) within the past five years, and committed the most recent offense while on pretrial release for another charge. H.B. 84 (No Bail for Certain Illegal Immigrants) would require no such stipulation.

The bill is sponsored by two first-term Republicans: Justin Burr, a bail bondsman from Stanly County, and Pearl Burris Floyd, a Gaston County commissioner who in 2008 became the first black Republican woman elected to the state Legislature. Reps. John Blust (Guilford Co.), David Guice (Transylvania Co.), Efton Sager (Wayne Co.) and Edgar Starnes (Caldwell Co.), all Republicans, have signed on as co-sponsors.

According to the bill, illegal immigrants convicted of a moving traffic violation; a sex, drug or gang-related offense; or a violent felony, would face a "rebuttable presumption" that they be denied bond. (In other words, defense attorneys would have to prove with "reasonable assurance" that their client will appear for trial, and that their release would not pose "an unreasonable risk" to the community, a burden that no other criminal defendant faces--with the exception, in North Carolina, of defendants who face capital charges, or who have committed multiple drug-trafficking or gang-related offenses.

(One other rare exception to guaranteed bond in North Carolina is defendants whose charges occurred while in involuntary commitment at a mental-health facility, or who have recently escaped from such a facility. These defendants are not guaranteed pre-trial release, but instead ordered returned to the mental-health facility.)

In addition, according to the bill, illegal immigrants accused of committing any misdemeanor or non-violent felony offense would be subject to a presumption of bond denial if U.S. Immigration and Customs and Enforcement has "guaranteed that, in all such cases in this State, it will issue a detainer for the initiation of removal proceedings and agree to reimburse the State for the cost of incarceration from the time of the issuance of the detainer."

Presumably, ICE could guarantee such retainers for any crime, at any time; the bill lists no additional provisions for which crimes the federal agency could agree to cover.

More updates to follow.

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