2006 Ballot Proposition Guide
Issued by the Arizona Secretary of State's Office
HOUSE CONCURRENT RESOLUTION 2028
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF ARIZONA;
AMENDING ARTICLE II, SECTION 22, CONSTITUTION OF
ARIZONA; RELATING TO BAILABLE OFFENSES.
TEXT OF PROPOSED AMENDMENT
Be it resolved by the House of Representatives of the
State of Arizona, the Senate concurring:
1. Article II, section 22, Constitution of Arizona, is
proposed to be amended as follows if approved by the
voters and on proclamation of the Governor:
22. Bailable offenses
Section 22. A. All persons charged with crime shall be
bailable by sufficient sureties, except for:
1. FOR capital offenses, sexual assault, sexual conduct
with a minor under fifteen years of age or molestation
of a child under fifteen years of age when the proof is
evident or the presumption great.
2. FOR felony offenses committed when the person charged
is already admitted to bail on a separate felony charge
and where the proof is evident or the presumption great
as to the present charge.
3. FOR felony offenses if the person charged poses a
substantial danger to any other person or the community,
if no conditions of release which may be imposed will
reasonably assure the safety of the other person or the
community and if the proof is evident or the presumption
great as to the present charge.
4. FOR SERIOUS FELONY OFFENSES AS PRESCRIBED BY THE
LEGISLATURE IF THE PERSON CHARGED HAS ENTERED OR
REMAINED IN THE UNITED STATES ILLEGALLY AND IF THE PROOF
IS EVIDENT OR THE PRESUMPTION GREAT AS TO THE PRESENT
B. The purposes of bail and any conditions of release
that are set by a judicial officer include:
1. Assuring the appearance of the accused.
2. Protecting against the intimidation of witnesses.
3. Protecting the safety of the victim, any other person
or the community.
2. The Secretary of State shall submit this proposition
to the voters at the next general election as provided
by article XXI, Constitution of Arizona.
Analysis by Legislative Council
The Arizona Constitution provides that all persons who
are charged with a crime are eligible for bail, subject
to certain exceptions. Bail is not allowed for any
person who is charged with a crime if the court finds
proof that the person committed the crime is evident or
the presumption that the person committed the crime is
great and the charged crime is one of the following:
1. A capital offense (an offense punishable by death),
sexual assault, sexual conduct with a minor under
fifteen years of age or molestation of a child under
fifteen years of age.
2. A felony offense committed when the person charged is
already admitted to bail on a separate felony charge.
3. A felony offense if the person charged poses a
substantial danger to any other person or the community
and no condition of release will reasonably assure the
safety of the other person or community.
Proposition 100 would amend the Arizona Constitution to
additionally prohibit bail for any person who is charged
with a serious felony offense (as determined by the
Legislature) if the person charged entered or remained
in the United States illegally and the court finds proof
that the person committed the crime is evident or the
presumption that the person committed the crime is
In 2006, the Legislature enacted legislation to specify
that class 1, 2, 3 and 4 felony offenses would
constitute the "serious felony" offenses for which a
person who has entered or remained in the United States
illegally shall be denied bail. That legislation does
not become effective unless Proposition 100 is enacted.
ARGUMENTS "FOR" PROPOSITION 100
Ballot argument FOR Proposition 100 (Bailable offenses)
Illegal aliens that commit a crime are an extremely
difficult challenge for law enforcement and growing
threat to our citizens. Large, well-organized gangs of
illegal aliens have flooded many neighborhoods with
violence to the point where Arizona now has the highest
crime rate in the nation. With few real ties to the
community and often completely undocumented by state
agencies, many illegal aliens can easily escape
prosecution for law breaking simply because they are so
difficult to locate. HCR 2028 would deny bail to illegal
aliens when there is convincing evidence that they've
committed a serious felony, keeping dangerous thugs in
jail rather than releasing them onto the streets.
Allowing an illegal immigrant to post bail simply gives
them time to slip across the border and evade punishment
for their crimes. By voting yes for this initiative, we
keep more violent criminals in jail, make our homes and
communities safer, and send a powerful message to
illegal aliens that their crimes will not go unpunished.
The Honorable Russell Pearce, Arizona House of
Paid for by "Russell Pearce 2004"
Illegal immigrants accused of committing serious
felonies in Arizona should not be allowed to make bail
and flee the country before standing trial for their
crimes. That's why I helped draft and strongly support
this proposition, which would amend our state
constitution to prohibit bail for such offenders.
Far too many illegal immigrants accused of serious
crimes have jumped bail and slipped across the border in
order to avoid justice in an Arizona courtroom. When and
if they do come back to the United States, too often
it's not to appear in court, but to commit more crimes.
One example is Oscar Martinez-Garcia. Indicted in 1998
on drug and weapons charges, he posted bail and was
released to federal authorities, who then deported him
before he could be tried. He returned to Phoenix
illegally and was driving a vehicle when Phoenix Police
Officer Marc Atkinson pulled him over. One of the
passengers in the vehicle shot and killed Officer
Atkinson. Martinez-Garcia was convicted of first-degree
murder for his participation in this cold-blooded
killing, but that won't bring back this fallen officer.
Other examples of illegal immigrants who made bail and
avoided prosecution for serious crimes include accused
child predators, armed robbers, drug dealers and other
accused criminals. The victims of these crimes deserve
Thanks to an amendment approved overwhelmingly by voters
in 2002, the Arizona Constitution now denies bail to
defendants accused of rape and child molestation. This
proposition similarly would deny bail to illegal
immigrants who pose a clear danger to society and who
too often use our border as an escape route. Our state
constitution was not intended to "bail out" illegal
immigration. I urge you to vote yes to end this abuse of
our criminal justice system.
Andrew Thomas, Maricopa County Attorney, Phoenix
The Arizona Farm Bureau supports proposition 100.
Bail is a judgment that the party is neither a danger to
society nor a risk of flight from prosecution. We ask
you: When is an undocumented person, who is accused of a
serious crime, not a flight risk?
If a person has no legal right to be in this country and
commits a serious crime for which they must answer, we
do not think bail is a prudent choice.
Comprehensive immigration reform would reduce the
criminal element coming into this country. Securing the
border coupled with a temporary worker program and
identifying the millions of those illegally in this
country, would do much to stem the tide of criminal
Kevin Rogers, President, Arizona Farm Bureau,
Jim W. Klinker, Chief Administrative Officer,
Arizona Farm Bureau, Mesa
Paid for by "Arizona Farm Bureau"
I fully support the actions of the State Legislature
that placed this measure on the ballot. The citizens of
Arizona must be assured that all persons who commit
violent criminal acts against society face our system of
It is a matter of undeniable fact that a large number of
these wanted fugitives from justice are illegal aliens
who have fled to their native country as a means of
avoiding prosecution and conviction for their crimes. In
many of these cases the prosecuting attorneys have asked
the court to retain custody of these fugitives because
of the flight risk only to have judges ignore that risk
and set bail.
This must not be allowed to continue. I commit to you
that, as your Governor, I will apply all legal measures
to protect and defend Arizonans from the illegal
invasion. This Ballot Measure addresses one area that
needs to be resolved in this fight to secure our borders
and reduce the level of crime in our neighborhoods.
It is embarrassing to have our state lead the nation in
crime. Unfortunately, the current governor has vetoed
ten separate bills sent to her desk by the legislature
that were written to protect you from illegal
We can do better and I ask you to vote YES on this
Ballot Proposition so the citizens of Arizona can have
confidence that our criminal justice system works as
intended. **Paid for by Goldwater for Governor
Don Goldwater, Goldwater for Governor, Laveen
Arguments "AGAINST" Proposition 100
Proposition 100 would deny the constitutional right to
post bail to people accused of most felony offenses
based on nothing more than their inability to prove
current immigration status, and not the actual danger
they pose to the community. It is wrong.
VOTE NO on Prop 100 because:
1. This proposition will cost taxpayers an extra $2,100
per month for each person who is held and denied bail.
2. Our jails are already overcrowded and cost taxpayers
millions every year. Arizona cannot afford to hold
low-risk persons simply due to their national origin.
3. Bail is a cherished constitutional right. People
accused of crimes have not necessarily committed the
crimes they are accused of and have the right to post
4. This proposition puts people who overstay a tourist
visa or cross the border in the same category as serial
5. People who pose an actual danger to society are
already held without bail under the current law.
6. Prop 100 will do nothing to increase public safety.
More reasons to VOTE NO on Prop 100:
Under current law, judges set bail to assure appearance
at court proceedings and protect public safety. The more
serious the crime, the higher the bail that is set.
Certain offenses, such as capital murder, are not
eligible for bail because they are considered very
serious. In contrast, Prop 100 penalizes individuals who
are not a danger and who have families and close
Prop 100 would also create a sub-class of people within
the justice system based solely on race or national
origin, and unnecessarily penalize people who pose
little or no risk to the community.
This proposition would do nothing more than
institutionalize bias and discrimination in the justice
system, at taxpayer expense.
VOTE NO on Prop 100.
Jim Fullin, Tucson
Matt Green, Tucson
Margot Veranes, Tucson
Paid for by "Margot I. Veranes"
PROPOSED AMENDMENT TO THE CONSTITUTION
BY THE LEGISLATURE
HOUSE CONCURRENT RESOLUTION 2028
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF
ARIZONA; AMENDING ARTICLE II, SECTION 22,
CONSTITUTION OF ARIZONA; RELATING TO BAILABLE
ADDS TO THE LIST OF NON-BAILABLE OFFENSES SERIOUS
FELONY OFFENSES PRESCRIBED BY THE LEGISLATURE IF
THE PERSON CHARGED HAS ENTERED OR REMAINED IN THE
UNITED STATES ILLEGALLY AND IF THE PROOF IS
EVIDENT OR THE PRESUMPTION GREAT AS TO THE PRESENT
A "yes" vote shall have the effect of denying bail
to persons charged with serious felonies as
defined by law if the person has entered or
remained in the United States illegally. YES
A "no" vote shall have the effect of continuing to
allow bail to persons charged with serious felony
offenses who enter or remain in the United States
illegally, unless the person is charged with an
offense for which bail is not permitted under
current law. NO
The Ballot Format displayed in HTML reflects only the text of the Ballot Proposition and does not reflect how it will appear on the General Election Ballot.
Spelling, grammar, and punctuation were reproduced as submitted in the "for" and "against" arguments. This text only version of the proposition guide may not include striking, underlining, emphasis and bolding of words in the proposition language, or in "for" or "against" arguments.
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JANICE K. BREWER
Arizona Secretary of State
© September 2006