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.”
Malia Zimmerman is an award-winning investigative reporter focusing on crime, homeland security, illegal immigration crime, terrorism and political corruption. Follow her on twitter at @MaliaMZimmerman