It's unconstitutional to deny bail to accused sex offenders without proof of danger to the community or victim, according to Tuesday's ruling by the Arizona Court of Appeals.
In a split opinion, the majority said it may very well be appropriate to keep individuals who are charged with having sexual contact with minors behind bars until trial. But Judge Peter Swann said simply being charged with a crime — even if there is evidence of the person's guilt— is legally insufficient to hold someone without bail.
Swann said a judge can deny bail only if prosecutors can also show that no conditions of release can be imposed in order to properly ensure protection of others. Swann also suggested that Arizona laws absolutely prohibiting bail for those accused of capital offenses may be similarly illegal. But the court did not go quite that far in Tuesday's decision, leaving that question for another day.
Maricopa County Attorney Bill Montgomery said he will seek state Supreme Court review.
The ruling involves two men charged in separate unrelated incidents, including sexual conduct with minors younger than 15. Both were initially denied bond based on an Arizona law and a state constitutional provision that deny bail in certain kinds of crime "if the proof is evidence or the presumption great that the person is guilty of the offense charged.''
But Swann said the U.S. Supreme Court in 1987 ruled that categorical denial of bail is unconstitutional. Instead, the high court said prosecutors must first prove by clear and convincing evidence that no release conditions will reasonably assure the safety of any other person and the community.
Swann was careful to say he was not excusing the offenses charged here.
"Sexual conduct with a young minor is unquestionably a serious offense that involves a vulnerable class of victims and severe penalties,'' he wrote. "But it cannot serve in every case, as a reliable proxy for unmanageable flight risk, witness intimidation, unmanageable risk to victims or any other plausible bail consideration.''
Appellate Judge Andrew Gould, in his dissent, rejected the contention that denial of bail in certain circumstances is unconstitutional. He said the express purpose of the statute and its companion state constitutional provision "is to protect victims and the community.'' That, he said, makes its purpose "regulatory, not punitive.''
Gould acknowledged that it is impossible to always know if a defendant charged with having sex with a child poses a danger to the victim or community. But he said that may also be true of someone charged with murder or other capital offense.
"But it seems to me that if holding a defendant without bond in a capital case or murder case is constitutional, and has been for over 200 years, then doing so when a child is the victim of a serious sex crime is as well,'' Gould wrote, saying he would uphold Arizona provisions for denying bail as constitutional.
EDITOR'S NOTE: This article has been modified to more accurately reflect the ruling of the Arizona Court of Appeals.