In the parlance of thugs, to greenlight an enemy is to put out the word that the mark is fair game, and anyone who takes a whack at the target will be rewarded. It is therefore contextually appropriate to say that Maricopa County Attorney Andrew Thomas has greenlighted Judge Ryan to the hate-filled immigration crowd who are his groundings.
Why is Thomas targeting a member of the judiciary? Because Judge Ryan has not denied bail to every suspected illegal immigrant that has come through his court.
Already the jackals who look to Thomas as their pack leader are baying for Ryan’s blood. Dennis Wilenchik is disgracing himself by attacking Judge Ryan’s independence and integrity with an unprecedented demand that Judge Ryan be recused from every case handled by the Maricopa County Attorney’s Office; a demand that would essentially require Judge Ryan to resign from his position as senior judge on the Maricopa criminal bench. In short, they want to destroy Judge Ryan as a jurist and public servant. Thomas, and his hatchet man Wilenchik, want Ryan destroyed.
Is Judge Ryan denying bail to many suspected undocumented immigrants under Prop 100? Yes, he is. But not every to single one that could be denied bail under Prop 100. And that pisses Thomas off, because in his view, judges haven’t any discretion to allow bail to suspected undocumented immigrants: every single undocumented immigrant must be denied bail according to Thomas’ view of Prop 100.
Thomas’ claim is a legal absurdity: that Prop 100 removed all discretion from Arizona’s judges when determining bail eligibility for any suspected undocumented immigrant charged with a felony. Here’s the constitutional article at issue (Prop 100 language is in red):
"Section 22. A. All persons charged with crime shall be bailable by
sufficient sureties, except:
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 charge.
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
One can plainly see that our constitution enumerates three other conditions under which the accused need not be admitted to bail. Conditions 1 through 3 have always been held by the courts, over decades of Arizona decisions, to lay out the framework within which a judge is to exercise his or her discretion as to whether or not to allow bail.
If the judge believes, given what he knows about the accused and the available facts, that a person who falls into one of the three enumerated classes should not be given bail, the constitution empowers the judge to hold the accused without bail. Prop 100 simply added a fourth condition – illegal entry and remaining – under which persons may be held without bail at the discretion of the judge. That’s exactly what Judge Ryan maintains, that is what our legal history teaches, and that is exactly what angers Thomas so much.
You see, Thomas wrote Prop 100 to further his own political ambitions. He thinks that his private views on the matter should therefore be the final word on the subject. One can see that Thomas thinks that no undocumented person should ever be admitted to bail from his own words: "We ask you: When is an undocumented person, who is accused of a serious crime, not a flight risk?" Thomas’ facile answer to his rhetorical answer is, of course, never.
The legal answer is, of course, when a judge, who is in the best position to know all the relevant facts about the accused, says that the accused is not a flight risk despite his immigration status. Thomas can’t accept that judge might just know better than him and his little rhetorical question. Thomas can’t accept that as a society we have empowered judges to make such judgments; not Thomas. Thomas’ authoritarian personality is unable to accept that there are things outside his control.
Thomas and his henchmen will point to the recent Arizona Court of Appeals ruling in Hernandez v. Lynch and claim that the Arizona courts have upheld Prop 100’s constitutionality. Indeed, the court did rule that Prop 100 is constitutional. But the courts have not held that Prop 100 mandates that judges deny bail to anyone they suspect is an undocumented immigrant. The ruling is simply irrelevant to that issue, and if Thomas were to test that issue in court, he would lose. But Thomas and his admirers are trying to use that irrelevant ruling of constitutionality to imply that their theory of it’s application is also correct.
The constitution does not require a judge to deny bail. Ever. A judge could release on bail (or no bail for that matter) a serial-killing billionaire foreigner who tells the judge that he wants to kill some more and then flee the jurisdiction. No jurist would do that because they are conscientious and responsible people, but they have that power. That’s part of being a judge, and all Thomas can do about that is bully any judge who tries to exercise his unconditional constitutional power as a judge under Prop 100. Thus does Thomas hope to accomplish by intimidation what he could never accomplish legally.
Part of being a member of the judicial branch of our government is being vested with the power to, well, make judgments. Thomas would
deny judges discretion under Prop 100 whenever and however he can. In this case, through intimidation and thuggery. Thomas’ attack on Judge Ryan is an attack on
the whole judiciary and attack on judicial independence itself. It’s a grab for
unprecedented and unconstitutional power for prosecutors, and a denigration of our constitution, our legal traditions, and the quality of justice in Arizona.
Most of all, Thomas’ attack on Judge Ryan is an assault on our civil liberties. Though Thomas is cleverly just picking on
despised and powerless illegal aliens at the moment, he’s proving himself more than willing to come after you, if you become despised and weak and it becomes politically useful for him to do so.
Thomas knows he can never win this issue in court, so instead, he is waging a PR campaign, assailing the integrity of a worthy public servant, and assaulting the independence of every judge in Arizona by proxy. And his misinformation campaign is working. His minions all believe, and state as fact, the mistaken theory that judges haven’t any discretion in accepting bail under Prop 100. Mainly they believe it because they wish it could be so. Their eliminationist fantasies are fed and nourished by Thomas distortion and abuse of the law. Some of his admirers are claiming that Prop 100 flat-out mandates that undocumented immigrants be denied bail. That’s flat-out wrong, but it sure is politically useful for Thomas and his plan to run for state-wide office by exploiting people’s fear, anxiety and xenophobia to fuel his own thuggish and unethical political rise.
Thomas’ unprincipled attempt to intimidate Judge Ryan is part of the larger pattern of ultra-conservative politicians working to undermine and intimidate the judiciary to achieve their political goals when they are frustrated by our constitution and legal traditions. Justice Sunday rallies that are essentially an Orwellian Two Minutes Hate of the judiciary, political threats and intimidation aimed our our judiciary to such a degree that even Sandra Day O’Connor feels compelled to sound the alarm about the trend, and the growing number of real and threatened acts of violence against the judicial profession are all part of an attack aimed at the very heart of the rule of law in this country.
Our judiciary is a thin black line between the rule of law and the tyrannical rule of demagogues. Rather than defending and honoring the judiciary as befits his office, Thomas is laying siege to his small front in the conservative assault on the judiciary.
Thomas is therefore most dangerous, and least ethical, politician in Arizona – and that’s saying a great deal considering what a nest of yahoos, poltroons and bounders Arizona’s GOP has become. He’s proven himself willing and eager to abuse the legal process, misuse the power and prestige of his office, and to blur the boundaries of ethical behavior to achieve his political ambitions.
Shame on you, Mr. Thomas.