State can’t deny bail to accused sex offenders

State laws denying bail to accused sex offenders are unconstitutional, the Arizona Court of Appeals ruled Tuesday.

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. He said a judge can deny bail only if prosecutors can also show that no conditions of release can be imposed to ensure protection of others.

In fact, Swann suggested that even 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 Wednesday’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 of various charges, including sexual conduct with minors younger than 15. Both were initially denied bond based on an Arizona law and state constitutional provisions 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 said 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.

By contrast, the judge said, the law and state constitutional provisions here require that defendants must be denied bail “upon nothing more than a sufficient showing that they likely committed the offense, without addressing the availability of release conditions that could assure the safety of victims and the community.”

And Swann said that opportunity for a hearing is a necessary safeguard. Otherwise, he said, a flat denial of bail with no opportunity for a defendant to argue he or she can be safely released, becomes punitive.

Swann said Wednesday’s ruling is not as far-fetched as it might sound.

He noted, for example, that existing Arizona laws give a judge the opportunity to deny bail to someone who is a member of a criminal street gang. But Swann pointed out this is not automatic.

“The court still has the duty to consider the propriety of setting bail for the dangerous individual on a case-by-case basis but retains the authority to deny bail altogether if the facts warrant,” Swann wrote of that law. He said the same requirements exist even for cases where state lawmakers — or even voters — decided some people should be denied bail.

And even under federal law, he said, those accused of terrorism are entitled to a bail hearing.

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.

Swann conceded that those accused of crimes for which death is a possible penalty have been traditionally denied bail. But he said that “is an open issue,” though one the court is not now deciding.

This isn’t the first time an appellate court has voided a provision of Arizona laws on bail.

In 2014, the 9th U.S. Circuit Court of Appeals voided a 2006 voter-approved change to the Arizona Constitution that made bail unavailable to those charged with “serious felony offenses” if they are in this country illegally and there is “evident” proof the person is guilty of the offense charged.

In their ruling, the federal appellate judges said the measure violates the U.S. Constitution. The majority in that case said the right against being deprived of liberty without due process extends to “even one whose presence in this country is unlawful.”

The U.S. Supreme Court refused to disturb that ruling.