Criminal Defense of Immigrants


§ 6.9 2. State Courts

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State criminal courts may consider the totality of the circumstances in deciding whether to release a defendant from criminal custody pending disposition of the case, especially including (1) risk to public safety, and (2) the probability the defendant will appear in court as required, weighed against (3) the defendant’s liberty interest.[24]  State pretrial release statutes list many considerations for courts to use in deciding whether and how to release a defendant from custody, which are usually not mandatory or exclusive.  Therefore, some factors are identified by judicial decisions as well. “In general, whether established by statute or case law, most states adhere to those factors delineated in the Uniform Rules of Criminal Procedures.”[25]  The Uniform Rules “are designed to minimize unnecessary pretrial detention . . . ‘pending determination of guilt or innocence.”[26]   They presume that a defendant should be released on his or her own recognizance pending and during trial, unless there are substantial countervailing factors.[27]


                The Uniform Rules, and many state statutes and judicial decisions, list as factors to consider: (1) the nature and circumstances of the offense; (2) the weight of evidence against the accused; (3) family ties; (4) employment, or financial resources; (5) character; (6) mental health and characteristics; (7) length of residence in the community; (8) any record of arrests or prior convictions; and (9) record of appearance in prior court proceedings, where applicable.[28]


                State statutes generally do not specifically list immigration status as a factor to consider in making release decisions.  Illinois appears to be the only exception, in stating the court may consider “whether the defendant is currently subject to deportation or exclusion under the immigration laws of the United States; . . . and whether a foreign national defendant is lawfully admitted in the United States of America.”[29] 


                A number of states expressly prohibit a judge from asking a defendant to disclose his or her status at the time of entering a plea.[30]  Whether such prohibitions may be interpreted as applying to inquiries in conjunction with a custody determination is not clear.


                A few state court decisions specifically address lack of U.S. citizenship as a factor to consid­er in release from custody determinations. In those cases, lack of U.S. citizenship was deemed relevant in the context of other, equally important factors, but was not the sole factor under consideration nor was it deemed dispositive in making the determination.


                California. One court stated a defendant’s lack of citizenship may be a factor justifying high post-conviction bail.[31] 


                Ohio.  A court recognized that the bail had to be reasonable and “commensurate with the risk of flight in order to ensure the presence of petitioners at trial.”  The court considered that the petitioner had only recently arrived in the state and had no ties to the community, and that he was not a U.S. citizen, as well as the severity of the charges and the potential sentence the defendant faced.  It was this combination of factors that led the court to conclude that he posed a “reasonable probability of flight — especially in light of the fact that petitioner has no ties to the community.”[32]  The court, however, reduced bail considerably, and ordered the defendant’s release on conditions that he surrender his passport, refrain from any travel except to his home in Houston, Texas, and arrange and pay for electronic monitoring in Houston.[33]


                Texas.  An appellate court considered lack of ties to the community and lack of U.S. citizenship, among many other traditional bail factors, in concluding the defendant was a flight risk and declining to reduce the bail set by the trial court.[34]


[24] E.g., Ariz. R. Stat. § 13-3967; Cal. Penal Code § 1275; Fla. Stat. § 903.046; 725 Ill. Comp. Stat. § 5/110-5; Tex. Code Crim. Proc., Art. 17.15.

[25] Immigration Considerations in Custody and Release, American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings, Chap. 2, 2-8  (P. Goldberg & C. Wolchok, eds., 2004), citing Uniform Rules Of Criminal Procedures R. 341 (hereinafter “Uniform Rules”), available at

[26] Commentary, R. 211-221, Uniform Rules (citations omitted).

[27] Id. at Rule 341(e) and commentary.

[28] Immigration Considerations in Custody and Release, American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings, Chap. 2, 2-9  (P. Goldberg & C. Wolchok, eds., 2004).

[29] 725 Ill. Comp. Stat., Code of Crim. Proc. 5/110-5(a).

[30] E.g., Cal. Penal Code § 1016.5(d).

[31] People v Marghzar, 192 Cal.App.3d 1129, 239 Cal.Rptr. 130 (1987) (upholding $200,000 bail on appeal, inter alia, because defendant was not a United States citizen).

[32] Blackwood v. McFaul, 134 Ohio App. 3d 138, 141 (1999).

[33] Id. at 141-142.

[34] Ex parte Wilson, 01_00_00140-CR (1 Dist. Tex. App.) (not designated for publication) (in a first-degree felony murder case, the court reviewed the factors favoring reduction of bail introduced by the defendant, which included, among others, a lack of criminal history, and compared them with countervailing factors including lack of any ties to the community -- no work history, no residency in the area, that he was not a United States citizen and that his family ties were all in Canada -- as well as the severity of the crime and the potential sentence).