When Francisco Javier Chavez posted bail on charges of beating a
California toddler within an inch of her life in late July, there was
little reason to expect the illegal immigrant, who has spent much of his
adult life hopping back and forth across the Mexican border, would
return to face justice.
Two weeks later, at his scheduled arraignment on Aug. 13, Chavez was a
no-show. The 27-year-old career criminal had put up $10,000, or 10
percent of the amount set for his alleged crimes by California's bail
schedule. His disappearance is hardly a surprise to critics who believe
violent illegal immigrants are, by definition, flight risks who should
be denied bail in such serious cases. They say judges, especially in
border states plagued by illegal immigrant crime, are naive or worse if
they expect suspects who regularly cross in and out of Mexico to take
the U.S. justice system seriously.
“Frankly, judges grant bail in cases like these because they are
being foolish,” said Hans A. von Spakovsky, a former Justice Department
lawyer now at The Heritage Foundation’s Edwin Meese III Center for Legal
and Judicial Studies. “The judge can consider bail for you when you are
charged with a crime, but does not have to let you out on bail. If the
state can show you are a flight risk, you should not get bail. If the
state can show you are a danger to the public because of a history of
violence, you should not get bail.”
“Frankly, judges grant bail in cases like these because they are being foolish.”
- Hans A. von Spakovsky, Heritage Foundation’
While Chavez is in the wind, his alleged victim, the 2-year-old
daughter of his live-in girlfriend, is now in foster care, paralyzed
from the beating that also left her with both arms and a femur broken.
Well before he was arrested in San Luis Obispo County for attacking the
child, Chavez had compiled a lengthy criminal record that includes
assault and drug convictions and arrests for violent acts such as
kidnapping, car-jacking and cruelty to a child. He was deported in
February 2014, but as in previous instances, found it easy to sneak back
across the border and into the U.S.
Weeks after Chavez slipped out of custody, on Sept. 1, another
2-year-old toddler named Jonathan Montez was run down and killed in San
Bernardino County. Illegal immigrant Jose Enrique Vasquez, 53, an
unlicensed driver who witnesses said was speeding down the child’s
residential street, fled the scene, according to authorities. He was
arrested two weeks later, and, like Chavez, was granted bail.
Vasquez also has compiled a lengthy criminal record under various
aliases, including charges of spousal abuse, battery of a peace officer,
driving without a license, driving under the influence and armed
robbery. But other charges in his criminal record might have given a
judge pause in considering bail according to critics, including failure
to appear in court, possession of false citizenship documents and eight
deportations for illegally entering the country.
The systems for granting bail in state courts varies from state to
state. California's bail system lays out prescribed amounts for various
crimes as a guideline for law enforcement and judges, but judges retain
discretion to raise the amount in cases where the suspect is a flight
risk or a danger to the public and the district attorney can add, drop
or change the charges. Two states, Alabama and Missouri, have passed
laws that preclude bail for illegal immigrants suspected of serious
crimes, while judges in other states -- notably Texas -- weigh illegal
status in making their decisions. But last year, the 9th Circuit Court
of Appeals ruled that Arizona's 2006 law banning bail for illegal
immigrant suspects violated their right to due process and amounted to
punishment before trial. The 11-member panel's decision called the law a
"scattered attempt" to deal with the problem of chronic bail-skipping
by illegal immigrants. Earlier this year, the U.S. Supreme Court
declined to consider the lower court's decision.
Judges everywhere maintain discretion to deny bail to anyone they
believe is likely to flee justice, yet they often fail to consider
illegal status as a factor, said Jessica Vaughan, director of policy
studies for the Center for Immigration Studies. And critics say it
should be obvious that someone here illegally and suspected of a violent
crime will bolt
rather than face justice, especially in border
states such as California, where they can be out of the country an hour
after posting bail.
“Aliens who commit acts of violence should not be released on bail,
because they are clearly a danger to the public, and when we have
someone with this kind of deportation history, clearly they are an
obvious flight risk,” said von Spakovsky. “These judges are making
mistakes granting bail to illegal aliens – reckless mistakes that
endangered the public.”
The willingness of judges to grant bail to illegal immigrants charged
with serious crimes compounds the ongoing controversy involving
so-called sanctuary cities. Such jurisdictions, either by local statute
or practice, refuse to inform federal Immigration and Customs
Enforcement agents when an illegal immigrant is detained.
But even jurisdictions that do not implement sanctuary policies
believe that two federal court rulings, the 2013 California “Trust Act,”
which limits “cruel and costly immigration hold requests in local
jails,” and an ambiguous White House policy all bar them from holding
illegal immigrants who have posted bail until federal authorities can
collect and deport them – even if ICE asks them to via what is known as a
“detainer request.”
The American Civil Liberties Union has sued jurisdictions that
attempted to honor the ICE detainers, and the Department of Justice has
not intervened in the cases to underscore its support of them. As a
result, local law enforcement agencies say they have no choice but to
let even violent illegal immigrant suspects walk once they are granted
bail.
“Yes, the judges who ignore this risk are at fault, but Congress
provided ICE with a tool to address the problem -- detainers -- which
the Obama administration is not allowing its officers to use,” Vaughan
said.
In the cases of both Chavez and Vasquez, ICE issued detainer
requests. In Chavez’s case, ICE agents did not arrive prior to bail
being posted. In the case of Vasquez, ICE isn’t immediately taking
custody or deporting Vasquez, so that
he remains in the U.S. at least resolving the legal proceedings surrounding the hit-and-run charge.
Don Rosenberg, who, after his 25-year-old son Drew was killed by an unlicensed immigrant driver in San Francisco
five
years ago, began closely tracking illegal immigrant crime, said the
biggest problem he sees is “people in power don’t care.” He blames
judges for granting bail, but also holds law enforcement accountable for
caving in to the threat of lawsuits.
“How can anyone who in law enforcement let people like this out of
custody who we know will likely hurt someone badly, if not kill them,
even if they are threatened with a lawsuit?” Rosenberg said. “It’s pure
callous indifference. I don’t know how they live with themselves.”
