by Dale Chappell

The Supreme Court of Arizona held that a law categorically banning bail for persons charged with sexual assault was facially unconstitutional, debunking the myth that sexual offenders are “inherently” a danger to the public and that an individualized assessment must be done in every case to satisfy due process.

In 2017, Guy Goodman was charged with sexually assaulting a minor in 2010, after she reported that he touched her genitals beneath her underwear while she slept. Goodman admitted he did so, and the superior court, over the State’s objection, granted bail at $70,000 with certain conditions. The State appealed, and the court of appeals vacated Goodman’s bail, ruling that “sexual assault remains a non-bailable offense.” The Arizona Supreme Court granted review and vacated the court of appeals’ decision.

The question before the Supreme Court was whether the categorical denial of bail for every person charged with sexual assault, when the proof is evident or the presumption great as to the charge, violates due process. Although Goodman pleaded guilty and was sentenced while this case was pending, the Court still decided to address the matter because it is “an issue of statewide importance” that is “capable of repetition yet could evade review due to the temporary duration of pretrial detention.”

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution prohibits the government from punishing an accused person by jailing them before trial. United States v. Salerno, 481 U.S. 739 (1987). But where there is a “legitimate and compelling” reason that “narrowly focuses on a particularly acute problem,” the U.S. Supreme Court held in Salerno that pretrial detention is allowed for regulatory, rather than punitive, purposes.

In 2002, Arizona voters approved Proposition 103 (codified as A.R.S. § 13-3961(A)(2)-(4)), which created a categorical ban on bail for anyone charged with sexual assault, sexual conduct with a minor under age 15, or molestation of a child under age 15 when “the proof is evident or the presumption great that” the accused committed the crime. Proposition 103 also amended Article 2, Section 22(A)(1) of the Arizona Constitution to reflect the foregoing categorical ban.

In Simpson v. Miller, 387 P.3d 1270 (Ariz. 2017), the Arizona Supreme Court held that both Article 2, Section 22(A)(1) and § 13-3961(A)(3) were facially unconstitutional with respect to charges of sexual conduct with a minor under age 15.

The problem stems from a publicity pamphlet handed to voters promoting Proposition 103 that said the law was needed in order to keep “rapists and child molesters” from endangering the public while awaiting trial. Further fanning the flames was the state senator who sponsored the bill, warning voters that “sexual predators ... know they could be facing lifetime incarceration, and thus “have no incentive to ever return” to court. Other supporters of Proposition 103 convinced voters of the need to “prevent the worst sexual predators from jumping bail or even simply walking our neighborhoods.”

Criticizing these fear tactics, the Supreme Court said that “nothing shows that most persons charged with sexual assault, or even a significant number, would likely commit another sexual assault or otherwise dangerous crime pending trial if released on bail.” The State argued that the recidivism rate among sexual offenders showed sexual assault arrestees would commit a new sex crime if released on bail. But the Supreme Court said that the studies cited by the State were “not illuminating.” Instead, “none of the studies cited reflects that most convicted rapists reoffend,” the Court pointed out, with “the highest number being 5.6% reoffending within five years of release from prison.” And the only cited study regarding accused rapists released on bail showed just 3% committed another crime (not just a sex crime) while on bail.

The Court also questioned the U.S. Supreme Court’s decision in McKune v. Lile, 536 U.S. 24 (2002), where now-retired Justice Kennedy said the recidivism rate of sexual offenders is “estimated to be as high as 80%” and that sexual offenders “are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.”

The Arizona Supreme Court explained that the actual study relied on by Kennedy showed “that 7.7% of convicted rapists released from prison in 1983 were rearrested for rape within three years.” The Court concluded that the “recidivism rates do not inherently demonstrate that a person charged with sexual assault will likely commit another sexual assault if released pending trial.”

Due process requires an “individual assessment” of whether an accused will present a risk if released on bail, the Court said. Thus, the Court held that “article 2, section 22(A)(1), and § 13-3961(A)(2) are facially unconstitutional because they categorically prohibit bail without regard for individual circumstances.” It instructed that “courts can deny bail to a person charged with sexual assault,” but in order to do so, “courts must engage in an individualized determination by conducting a hearing.”

Accordingly, the Supreme Court affirmed the superior court and vacated the court of appeals’ opinion. See: State v. Wein, 417 P.3d 787 (Ariz. 2018). 

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