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Is a Categorical Denial of Bail for Accused Sex Offenders Constitutional?

My co-authored amicus brief urges the Supreme Court to review the issue of whether Arizona can deny bail to accused sex offenders where "proof" of sexual assault "is evident or the presumption great."

The Supreme Court will soon consider whether to grant a certiorari petition filed by Arizona, which involves a voter-approved amendment to the Arizona Constitution rendering a defendant categorically ineligible for bail if "the proof is evident or the presumption great" that he committed sexual assault. In a 4-3 divided opinion, the Arizona Supreme Court concluded that this amendment was unconstitutional. Arizona has sought review of that decision. Along with counsel of record Allyson Ho and her colleagues at Gibson, Dunn & Crutcher and Steve Twist at Arizona Voice for Crime Victims, I have filed an amicus brief urging the Court to grant review. Our brief argues that nothing in the Constitution prohibits the States from empowering trial courts to protect crime victims by denying defendants bail when—as determined by a trial judge after a full and fair adversarial process—the proof is evident that the defendant committed a sexually violent offense.

Here's the relevant background: In 2002, over 80 percent of Arizona voters approved Proposition 103, which amended Arizona's Constitution by rendering a defendant categorically ineligible for bail if "the proof is evident or the presumption great" that he committed sexual assault. As explained in the cert petition, Arizonans approved Proposition 103 "both to ensure that sexual predators facing potential life sentences would be present for trial and to keep rapists and child molesters from endangering others while awaiting trial." Proposition 103 was adopted "to prevent the worst sexual predators from jumping bail or even simply walking our neighborhoods . . . and treating bail for rapists and child molesters ... like bail for murderers." By denying bail when—as determined by a court after an adversarial proceeding—the proof is evident that a defendant committed a sexually violent offense, Proposition 103 helps ensure that victims of sexual assault receive the full panoply of protections they are guaranteed by the Arizona constitution— including the right to be "treated with fairness, respect, and dignity" and to be "free from intimidation, harassment, or abuse, throughout the criminal justice process." Ariz. Const. art. II, § 2.1(A)(1).

Respondent Guy James Goodman—after being confronted with DNA evidence—pleaded guilty to sexual assault for creeping into his victim's bedroom, crawling into bed with her, pulling down her underwear, and penetrating her with his fingers. Just before his arrest, in Simpson v. Miller, the Arizona Supreme Court held that Proposition 103 could not be constitutionally applied to defendants charged with sexual conduct with a minor. The Arizona Supreme Court concluded that criminal sexual conduct with a minor was not a sufficient proxy for future dangerousness because, in addition to criminalizing the defendant's conduct—molesting children under fifteen when he was in his twenties and thirties—the statute also arguably criminalized consensual sex between teenagers. In this particular case, relying on Simpson, the trial court ruled that Goodman was entitled to bond. Even though the proof was evident that Goodman sexually assaulted the victim, the trial court concluded that the State had failed to prove he presented "a substantial danger to other persons or the community."

The Arizona Court of Appeals reversed, holding that "[s]exual assault remains a non-bailable offense." Unlike sexual conduct with a minor, which encompasses statutory rape, "the nonconsensual nature of [sexual assault] fulfills the requirement for finding inherent dangerousness."

In a sharply divided decision, the Arizona Supreme Court in turn reversed the Court of Appeals, concluding that data regarding sex offenders' high "post-conviction recidivism rates do not inherently demonstrate that a person charged with sexual assault will likely commit another sexual assault if released pending trial." Justice Clint Bolick—author of the Simpson majority opinion—dissented, joined by two other justices. His dissent emphasized that "sexual assault is by definition a uniquely horrific act, in which a person's most intimate parts are violated through force, coercion, or deception." He would have held that Proposition 103 withstands scrutiny because the Supreme Court has made clear that "a state may categorically regulate sex offenders as a class for public safety purposes, both because of the uniquely horrific nature of the crimes and sex offenders' propensity for recidivism." Justice Bolick concluded by "urg[ing]" the U.S. Supreme Court to review this issue.

Arizona has now filed a petition for certiorari, supported by Texas and six other states. Our amicus brief also urges the Court to review the case, focusing on the crime victims' interests at stake.

Our amicus brief makes two main points. The first is that a well-supported charge of sexual assault is a sufficient proxy for future dangerousness. Relying on the Supreme Court's earlier decision in Salerno, we explain that a State can categorically deny bail based on the charged offense if it can show that defendants charged with that offense categorically present "a continuing danger to the community." A substantial body of academic literature, supported by data collected by the U.S. Department of Justice, confirms that sex offenders reoffend at extremely high rates—regardless of how reoffending is defined (convictions versus arrests) and regardless of subsequent offense that counts as reoffending, be it another sex crime, a different violent crime, or any other type of subsequent crime. For example, a Justice Department study found that a significant number of sex offenders—14 percent—not only reoffend, but also do so while out on bail.

The harm threatened by sex-offender recidivism is particularly severe and damaging to victims. Sexual assault "is a deplorable crime that endangers and dehumanizes victims." The Supreme Court has explained that "[s]hort of homicide, it is the 'ultimate violation of self.'" Because sexual assault "undermines the community's sense of security, there is public injury as well." In short, "sexual violence tears at the fabric of community well-being."

The second point our amicus brief makes is that defendants facing sexual assault charges present serious flight risks. As a matter of common sense and human nature, the more severe the potential punishment, the higher the risk that a defendant will flee rather than face trial. Sexual-assault convictions certainly raise the specter of severe punishments—especially considering not only the possibility of a lengthy prison sentence, but also the serious collateral consequences, including possible involuntary commitment and sex-offender registration. These punishments and consequences create a significant risk that accused sex offenders will flee rather than face justice.

Our brief concludes that "measures like Proposition 103 protect victims' rights, bring offenders to justice, and safeguard communities. They do not offend due process, because the high risk that a sex offender will reoffend, combined with the devastating harm to victims and communities and the high risk of flight, justifies the determination that—certainly where the proof is evident or presumption great—defendants charged with sexual assault are categorically ineligible for bail. If permitted to stand, the decision below will deprive the States of a badly needed tool for keeping sexual assault victims and communities safe. Because nothing in the Constitution requires—much less permits—that untoward result, the petition should be granted and the judgment reversed."

Last week, the Court called for a response to the petition. I hope the Court decides to review this important case.

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  • James Pollock||

    You've taken the side that the state can start punishing the defendant before obtaining a conviction? The meaning of the word "Libertarian" has changed rather more than a trivial amount when I wasn't looking.

  • Rev. Arthur L. Kirkland||

    Nothing has changed.

    You are observing faux libertarians -- movement conservatives who are sheepish about the word "conservative," either because they want to disassociate from some elements of movement conservatism as they attempt to operate in mainstream society or because they perceive a partisan advantage in claiming to be libertarians as they attempt to make movement conservatism more popular in a tough environment.

    This is the class of libertarians one finds in meetings of

    Libertarians For Authoritarian, Cruel, Bigoted Immigration Practices;

    Libertarians For Statist Womb Management;

    Libertarians For Torture;

    Libertarians For Creationism In Science Classrooms;

    LIbertarians For Economic Protectionism;

    Libertarians For Endless Detention Without Trial;

    Libertarians For Government Gay-Bashing;

    Libertarians For Invading The Wrong Country;

    Libertarians For School Prayer;

    Libertarians For Increased Military Spending;

    Libertarians For God In The Pledge Of Allegiance;

    Libertarians For Abusive Policing;

    Libertarians For Tariffs;

    Libertarians For Lesser Rights For The Non-Superstitious;

    Libertarians For Drug Warriors;

    and

    Libertarians For State Micromanagement Of Ladyparts Clinics.

  • TheAmazingEmu||

    Libertarians for Worshiping the Confederate States of America.

  • Brett Bellmore||

    The Bill of Rights does say, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

    No bail is functionally equivalent to infinite bail, and I don't see how infinite bail could not be excessive.

    OTOH, the real problem here isn't with bail, it's that the 6th amendment right to a "speedy" trial is routinely ignored. If it weren't for that, who'd care about bail so much?

  • Martinned||

    Well, if no bail were functionally equivalent to infinite bail, and thereby automatically excessive, denying bail would never be permitted, and that can't be right. I should think that bail that is refused without taking into account the circumstances of the case is per se excessive (or, as observed elsewhere, in violation of the presumption of innocence).

  • Brett Bellmore||

    This is structurally identical to the argument that, while the 4th amendment requires compensation for takings for public use, it doesn't say anything about compensating takings which are just to rob Peter and give the loot to Paul, so they don't need takings.

    I would say that bail can be set according to the severity of the crime and the level of the evidence, and the resources of the accused, at what is rationally estimated to make sure the person won't flee. If that means more than they can afford, so be it, but some level of bail should be on offer.

    But, as I said, the real issue is that the guarantee of speedy trials is routinely ignored, which is why we care about bail so much: Paying it is the only way to avoid a lengthy prison sentence prior to the trial!

  • James Pollock||

    "the 4th amendment requires compensation for takings for public use"

    refresher needed.

  • Martinned||

    Bail that is higher than the person can afford is indeed functionally equivalent to denial of bail. If that's what you're going to do, have the courage to be honest about it.

    Just for the record, another way to motivate everyone is to make a law that entitles defendants to an automatic payment for every day they were in pre trial detention if they are subsequently acquitted. (But that doesn't have a snowball's chance in hell of happening anywhere in the US.)

  • James Pollock||

    Throw in consequential damages... in jail = not at work, so loss of income, and then if held long enough to keep defendant from making mortgage payments, causing foreclosure...

  • Brett Bellmore||

    I've long supported the idea that the government should be obligated to make whole anyone it fails to convict. But, as you say, snowball's chance in hell.

  • donttrustthepress||

    @ Brett:

    Good points all, though I respectfully disagree that the severity of the crime and level of evidence should be a factor in setting bail. Doing so erodes (if not eliminates) the presumption of innocence. Further, should the accused be acquitted, he's already been penalized unless he provided his own bail. If he used a bond, he can't get back what he paid for the bond and was therefore already penalized for the crime for which he was acquitted. The whole point of bail is to ensure the accused returns for trial, not to punish for crimes yet to be proven.

    If it were up to me, the whole concept of bail would be discontinued, whether or not pretrial confinement is necessary would be determined by facts other than the crime accused, and ankle monitors would be placed on those out awaiting trial so they can be found if they don't show. Putting them on parolees and probationers is silly; those that re-offend (and very, very few of them are sex offenders) are not deterred by ankle monitors.

  • Brett Bellmore||

    "The whole point of bail is to ensure the accused returns for trial, not to punish for crimes yet to be proven."

    Indeed, and flight risk obviously increases with severity of the crime, and so bail, in order to ensure the accused returns for trial, must also increase with it, and with the accused' capacity to afford losing the money as part of fleeing. It's built into the concept, properly understood. The bail that would keep a poor person charged with a minor offense from fleeing is enormously smaller than what it would take to keep a millionaire accused of murder from skipping town.

    I'd agree about the ankle monitors, but they need to be substantially improved, and with serious monitoring so that trying to remove one is almost certain to result in getting caught.

  • donttrustthepress||

    "Indeed, and flight risk obviously increases with severity of the crime, and so bail, in order to ensure the accused returns for trial, must also increase with it, and with the accused' capacity to afford losing the money as part of fleeing."

    Understand the sentiment, but that still presumes guilt of the crime at hand and still punishes if acquitted.

    Also see your point about ankle monitors. A cell phone app would probably be a good substitute, provided there is a means to ensure the phone is on the person at all times, which most people do nowadays anyway. Either would obviate the need for a bail system. Not going to happen though - bail bonding is too big an industry.

  • James Pollock||

    "A cell phone app would probably be a good substitute, provided there is a means to ensure the phone is on the person at all times, which most people do nowadays anyway."

    A cell phone app is absolutely rotten as a monitoring device.
    Here's how it would work out:

    Judge: Install this app on your phone, and your phone has to stay within 200 feet of the center of your home.
    Reprobate: Yes, sir. It will, sir.

    And it will. It will sit there, connected to a charger, sitting directly in the center of Mr. Reprobate's home. Mr. Reprobate, on the other hand, is familiar with the term "burner phone", and is elsewhere.

  • donttrustthepress||

    True enough, though I'd expect the judge to also order that the cellphone remain with him at all times. Many parolees and probationers have those apps as part of their conditions and are held in violation if they're caught without it. When Mr. Reprobate inevitably turns up somewhere, he'll get another charge for bail jumping.

    Not saying it doesn't happen, but I've never heard of remaining in residence being a condition of bail and if it were, it would be another example of inflicting punishment before conviction. Besides that, it would be pretty pointless to allow someone to bail out and scrutinize their movements to that extent; why allow bail in the first place?

    Back to the original subject, if bail is procedurally denied because "evidence is evident or the presumption is great" enough to trump the presumption of innocence at a bail hearing, how can the presumption of innocence be maintained at trial? Those accused of sex offenses are already in the position of having to prove their innocence in practice (regardless of what the law says). Excessive bail further hinders them from doing so.

  • ReaderY||

    Sorry, the 16th Amendment establishing an income tax put to rest the argument that taxation is a compensable taking. If taxes had to be paid back as compensation, an income tax would be a nullity. And interpreting entire constitutional amendments as nullities is a non-starter.

  • Junkie||

    Lets pretend we have both video and eyewitness testimony showing someone murdering a dozen people. He then surrenders and is arrested.

    Are we really supposed to let him out on bail? If no bail = infinite bail = excessive bail, I guess the Constitution says we have to.

  • James Pollock||

    "Are we really supposed to let him out on bail?"

    Yes, you are. Bail isn't punishment... it's guaranteeing appearance at trial.

    The punishment part of the justice system isn't supposed to be applied to innocent people, and the system considers people to be innocent until proven guilty in a court of law.

  • donttrustthepress||

    Junkie, that's a pretty extreme circumstance to base a law or procedure on. But for the sake of argument, I would think that a person who turns himself in under those circumstances would probably not post bail anyway even if it were within his means.

    Turning yourself in just to bail out and then skip makes no sense. If that's happened more than five times in the past 50 years, I'll print every page of every case record from the sixth through the present and eat them.

  • loveconstitution1789||

    Yup Brett. Speedy trials should be within a few weeks or drop the charges.

    The state machine knows that this is logistically impossible to give everyone speedy trials.

    A right to bail, was the Founders check to the state not giving people a speedy trial. The speedy trial is the check to the state not giving the defendant bail.

  • loveconstitution1789||

    And of course, the jury is the check to state abuse for many things not listed here.

  • donttrustthepress||

    The answer to that was plea bargaining. Used to be that one would plead guilty to a lesser charge and/or lighter sentence in exchange for waiving trial. But they don't even do that any more. Now they get people to plead to the max, just worded a little friendlier, like like 20 years, 15 on probation. Specific to sex offenders, they then make probation nearly impossible to abide by so they spend the entire probationary period running in and out of jail/prison.

    I've always suspected if all individuals awaiting trial in any state/county were to demand speedy trial, two things would happen immediately: 1) the DA's head would explode, and maybe the judges' as well, and 2) the public defender would be replaced about 15 minutes later. The PDs job nowadays, regardless of their mission statements, is to get defendants to agree to pleas.

  • David Nieporent||

    You've taken the side that the state can start punishing the defendant before obtaining a conviction? The meaning of the word "Libertarian" has changed rather more than a trivial amount when I wasn't looking.

    When did Cassell ever claim to be a libertarian? (Or anything other than a zealot, for that matter?)

  • James Pollock||

    I was referring to the umbrella organization, which runs this website.

  • David Nieporent||

    Not clear whether you mean Reason Magazine or the Reason Foundation, but neither one does so:

    We are not Reason employees, and we have sole editorial control over the blog. We are very pleased to be working with the Reason people, but please don't ascribe our views to them, or vice versa. Naturally, you shouldn't ascribe our views to our employers, either, or even to the other cobloggers. Each blogger speaks only for himself or herself.
  • Rev. Arthur L. Kirkland||

    The Conspirators expressly describe themselves as 'often libertarian' (and omit any mention of movement conservatism).

  • James Pollock||

    "Reason and Reason.com are editorially independent publications of the Reason Foundation, a national, non-profit research and educational organization."

    http://reason.com/about

  • David Nieporent||

    "Reason and Reason.com are editorially independent publications of the Reason Foundation, a national, non-profit research and educational organization."

    And if this were Reason, that would be relevant. But it's not; it's the Volokh Conspiracy, hosted by Reason.

    Since Reason has no control over the content of this blog, the argument that Cassell's post isn't libertarian is a non sequitur.

  • James Pollock||

    "Since Reason has no control over the content of this blog"

    That's what you call "not a fact", Jack.
    If you start with an untrue premise, EVERYTHING that comes after is a non sequitur.

  • JBogart||

    Isn't the relevant recidivism rate that for re-offending while on bail? It is hard to see why bail determinations should be conditioned on what people do after serving sentences.

  • gormadoc||

    14%; it's in the article.

  • bernard11||

    It's not clear that this is the recidivism rate while out on bail. The OP says,

    For example, a Justice Department study found that a significant number of sex offenders—14 percent—not only reoffend, but also do so while out on bail.

    So is that all recividism, or just the rate while out on bail? The sentence seems unclear to me.

  • Junkie||

    that seems pretty clear to me: 14% reoffend while on bail, some (likely larger) number reoffend later

  • bernard11||

    Maybe, though a link to the study so we could see for ourselves what it says would be helpful.

    If that is what Cassell means he could have written,

    "For example, a Justice Department study found that a significant number of sex offenders—14 percent—reoffend while out on bail."

    He might also have provided figures for other offenses for comparison.

  • TwelveInchPianist||

    "The sentence seems unclear to me."

    The sentence is an offense against the English language.

    His source says that 14% of rape defendants are rearrested while on bail, but it doesn't say how many are convicted.

    "He might also have provided figures for other offenses for comparison."

    He might have, but it didn't. The percentage for all rearrests that his source gives is 16%. So sexual assault rearrests are lower than average. And lower than robbery (24%) and equal to assault rearrests.

  • TwelveInchPianist||

    And to be clear, only 3% are rearrested for felonies. So the claim that 14% re-offend strikes me as quite misleading.

  • Bartholamew Kendrick||

    Welcome to every article ever written by Paul Cassell.

  • donttrustthepress||

    Even the 14% recidivism rate is misrepresented. Most of that are parole, probation, or status offenses (i.e., perfectly legal but for the person's status as a parolee, probationer, or sex offender registrant). Recidivism for actual sex crime committed by registrants has always been around 3% nationwide, and no state has a rate higher than 1%. And that's always been the case, even before the public registry was enacted.

    I've never seen a study about sex crime committed by those on bail. But given the above, I'm willing to bet my left arm that those cases are pretty few and far between, if there are any at all. Regardless of anything else, I don't think it's fair to punish thousands because of the acts of one.

  • santamonica811||

    Don'tTrust,
    How is that mathematically possible? Every single state is less than 1%, but--somehow--the national average is above 3%?!???? Is the recidivism rate 100% in Washington DC, or Guam, or Puerto Rico, some something like that (ie, part of the national average but also not part of any of the 50 states)?

    What am I missing?

  • James Pollock||

    "What am I missing?"

    Math skills.

    Recidivism means committing a new crime of the same type as the previous. A person convicted of a sex crime might commit another crime in the same state, in which case the state recidivism rate goes up. So far, so easy. Or they might commit another crime in a different state, in which case the original state's recidivism rate doesn't go up (because they only had the original crime), but the national recidivism rate does (because the nation had the original crime and the new crime).

    Because people can (and do) cross state lines easily, it should not be a surprise that the national recidivism rate is higher than the individual states'.

    This is why there even IS a national sex-offender registry. People would cross to a new state, where they didn't have a record, and then act like they didn't have a record..

  • donttrustthepress||

    James,

    Regarding the math skills, well put. I would add that the federal registry adds the state recidivism with recidivism for federal crime; the states don't.

    Respectfully disagree with:

    "This is why there even IS a national sex-offender registry. People would cross to a new state, where they didn't have a record, and then act like they didn't have a record."

    There is no need for a sex offender registry. A person's criminal record will follow them regardless, to include arrests and convictions for sex offenses. It has never provided anything of value toward its stated purpose of community protection. It has never prevented one single sex crime, as well over 90% of new sex offenses are committed by someone not on the registry (the number has varied between 93 and 97 since Megan's Law was enacted) and was true even before the registry went public. It doesn't deter the very small number of registrants that do recidivate. All it does is persecute those who statistically have become law abiding since their conviction. And considering how much normal activity has been criminalized for them, even the inflated 14% recidivism rate for sex offender registrants is low. Compare that to the recidivism rates of drug offenders and burglars.

    The registry is a good metaphor for our government - ridiculously large sums of money to create and maintain a system that accomplishes absolutely nothing.

  • James Pollock||

    "There is no need for a sex offender registry. A person's criminal record will follow them regardless, to include arrests and convictions for sex offenses."

    But registration imposes an affirmative duty on the registrant to notify the local law enforcement agency, as opposed to the passivity of oridinary conviction records.

    " It has never prevented one single sex crime, as well over 90% of new sex offenses are committed by someone not on the registry"

    Are you of the opinion that the second part of this statement has anything to do with the first part of the statement? They appear to be unrelated, so you must have left something out.

    If you want to argue that the registry is bloated and inefficient, you won't get an argument from me. It is both, and has been misused in some areas, and all of those are problems that should be addressed.

    But the core purpose is fine. Providing more information to people, to guide decisions, is pretty much always a good idea. People usually make better decisions when they have more and better information than they do with less or poor information.
    Many sex crimes are crimes of opportunity. Remove or reduce the opportunity, and you reduce the number of crimes.

  • James Pollock||

    CONT'D

    Some sex crimes are abuses of trust. Better information DEFINITELY can reduce the frequency of abuses of trust.
    So, lots of different kinds of abuses of trust have specific lists of people who've violated trust, so that other people will be extra careful before trusting them again. Embezzlers have a list. So do white-collar criminals, and bad-check writers, and identity fraudsters. If you commit Medicare fraud, guess what? Medicare looks at your billing really closely, if they let you take any Medicare cases at all.
    Politicians have sabotaged sex-crimes registries, because they want to look "tough on crime". So the guy that got caught peeing on the wall behind the bar just after closing time gets a sex-offense registration, despite the lack of sex-offense, much less the extremely thin likelihood of committing a sex-offense in the future. That's not what it's FOR.

    But the coach who sleeps with the 14-year-olds entrusted to his care? Yeah, the parents of 14-year-olds should probably know about that when they're deciding on a new basketball coach. Maybe the guy is such a good coach that you don't care, you just make sure not to leave the kids alone with him. Maybe he's not that good a coach, and you can hire a better one. But it's better for the parents to know.

  • James Pollock||

    CONT'D

    Plus, you also used to have some organizations that were complicit in covering up sex abuse. It would look bad for the organization to have a sex criminal associated with the organization, so the organization actively helps cover it up. A certain, unnamed but obvious religious organization, for example, had a real problem with this, but also some schools. We'll quietly remove the offender from their duties, and give them a good recommendation to go elsewhere, and nobody mentions why the transfer became necessary. Then everyone can pretend nothing ever happened.

  • santamonica811||

    Guys, I do appreciate the efforts to explain, but I am still failing to see the math. Can you explain it again? (Just think of me as a rather-slow student in the class you're teaching)

    Let's say there are 3 states in America (to make the math easier). Can you show me the math, so that no single state has a rate of over 1%, but somehow we end up with a national average above 3%? Of course people can move over state lines. But that does not help the math at all. If I commit, say, carjacking in State X, and after bail, re-commit over in State Y, then of course state Y's rate of recidivism will increase.

    Or was your point: Each state ONLY counts examples where someone commits the crime in their state, AND also re-offends in that same state...that the "felon moving to a new state" examples are just not counted? If so, then of course I can see how the math works.

    Don'tTrust. If you're correct about federal offenses being counted in the nationwide average but not in each state's individual average...then, again, this would make the math work. But only because we're now measuring two very different things. (Which might have been the point that was originally being made--and one that flew over the top of my head.)

  • James Pollock||

    "Can you show me the math, so that no single state has a rate of over 1%, but somehow we end up with a national average above 3%?"

    Criminal A lives in State S. A commits a crime, gets caught and convicted, does his community service, and is out in the public again.

    If A commits another crime in state S, then you have 1 recidivist crime for state S, and one recidivist crime for the country. The rate for both is the same.
    Now, if A commits another crime in any state other than state S, state S's rate of recidivist crimes doesn't go up, but the national rate does.

    So, let's build a table.

    A lives in state S
    B lives in state T
    C lives in state U
    Each has a conviction in their home state.

    A commits further crimes in S, as do B and C. C also commits further crimes in U.

    How is that counted? There are four national recidivist crimes... AS, BS, CS, and CU. Only two of those count for the states, however... AS counts as recidivist for S, and CU counts as recidivist for U. State T reports no recidivism at all. So, right there, you can see that with just four incidents, the recidivism rate for two of the states is a fraction of the national rate, and one of the states reports no recidivism at all.

  • santamonica811||

    James,
    1. Okay, that makes mathematical sense to me. But only if...
    2 ...All those other states, in fact, do not count as recidivism your examples BS and CS. That is what I was unaware of, as it seems so counter-intuitive and illogical to me. (I live in California, and if John Smith committed carjacking in Utah, and then also here in Cal--while out on Utah bail--I would sure think I'd be classifying him as a recidivist.)

    I'm getting way off-point (to the OP) here, but . . . any idea why none of the 50 states does this? There are plenty of states that are seen as 'hard on crime,' and at the very least; those states should be more than happy to count repeat offenders the "santamonica811 way." :-)

    I now understand the math. But the reasoning behind doing it this way is still perplexing to me.

  • donttrustthepress||

    For example, I commit a crime in Georgia and complete my sentence. Georgia records in their records and reports it to the FBI.

    I move to Florida, commit another crime and complete my sentence there. Florida puts it in their records and report it to the FBI. No recidivism in Georgia or Florida, but there is now recidivism in FBI records.

    I then commit a federal crime. It is not recorded in either Georgia or Florida's records as recidivism. It goes straight to the FBI, who now have two counts of recidivism.

  • santamonica811||

    DontTrust,
    Okay. But we all agree that this is the weirdest freakin' thing ever, right? I mean, the people in Georgia, and Florida (and California, et al) have a HUGE incentive to keep accurate records of habitual offenders, as they are the ones who put our communities' safety most at risk. And this cuts across the ideological divide.

    It is so difficult to imagine that all the states (many of them deeply conservative, and "law and order" type in regards to criminal law, of course) have made a conscious decision to not keep records of offenses committed out-of-state (by criminals who are now in their own state)...in other words; to deliberately keep their heads in the sand.

    I believe you (especially since no one has written in to correct you, so my assumption is that you're accurate), but I can't wrap my head around the state and local governments being complicit in this. I can't believe the general populous goes along with this. Again, weird...

  • donttrustthepress||

    I think it's a stretch to expect states to keep out of state criminal records for their residents. A person's criminal record from all states is already in NCIC, and all LE in all states have access to it. Accordingly, there's no need for states to maintain out of state or federal records.

    Presumably, the amendment in question was written and passed due to the presumption of high recidivism of registered sex offenders. The presumption is wrong, and has been proven wrong even before the sex offender registry went public. But the presumption prevails because the most horrific cases (Sandusky, Nasser, et al) get the most press and are presented as typical.

    The recidivism calculation question sort of veered off the original topic of this thread, whether it is reasonable to deny bail after arrest for sex crime across the board. Regardless of how it's calculated, sex criminals are the least likely recidivists among all classes of criminals except murderers, a proven fact overlooked by the amendments' authors and supporters. In any case, even if recidivism wasn't a factor in writing or passing that amendment, I would argue it is not and bail should be decided on a case by case basis.

  • loveconstitution1789||

    Is a Categorical Denial of Bail for Accused Sex Offenders Constitutional?

    8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    Every arrested person has a right to non-excessive bail- including murderers, sexual crime defendants, everyone. There are no flight risk, severity of crime, or danger to public exceptions mentioned in the US Constitution.

    Thanks to the 14th Amendment, all states are required to have the 8th Amendment bail language as a minimum in their state constitutions.

    Never let lawyers fuck up the Constitutional protections and limitations on the government.

  • Bob from Ohio||

    Text does not require bail at all.

  • loveconstitution1789||

    Of course! Founders always included meaningless words and rights that the state could just deny.

    Jesus Christ some of you people got your law degrees from a Cracker Jack box.

  • James Pollock||

    The text does not say "every person has a right to bail while awaiting trial". From this omission, we can determine that bail can be withheld in some cases to some defendants. As an example, persons who have a history of jumping bail might reasonably be denied bail.

    It isn't so obvious that the nature of the charges should determine the availability of bail (as opposed to the scale of bail to be required). It isn't directly contrary to the text.

  • loveconstitution1789||

    These trolls you guys have on here.

    Do they babble like this every day?

  • James Pollock||

    "Do they babble like this every day?"

    Yes, you do.

  • gormadoc||

    This from the dude who spent weeks telling us that Trump was playing nD chess and was going to get massive amounts of donations from anti-gun groups.

  • gormadoc||

    "Respondent Guy James Goodman"

    Is Respondent Guy a new title?

  • Remember to keep it all polit||

    Sexual assault is more horrific than murder, or assault which leaves the victim paralyzed, or in a hospital for six months?

    There is no accountability. Judges, prosecutors, and police will have every incentive to deny bail for the flimsiest of excuses, and extend the definition of sexual assault to every accusation possible. 19 year old having sex with a 15 year old? Sexual assault!

    This is a horrible idea and needs to be slapped down. To think that any so-called libertarian would support this is worse than supporting Trump's tariffs.

  • Bob from Ohio||

    "Sexual assault is more horrific than murder, or assault which leaves the victim paralyzed, or in a hospital for six months?"

    In law school I argued with several women classmates that a brutal enough regular assault might be worse than a rape without much other violence. Did not go well.

    That rape and child porn are the very worst and require extreme legal measures is a legal and cultural truism that cannot be refuted.

  • SKofNJ||

    Why? Because when I was in law school, I lost an argument. What better proof do you need?

  • loveconstitution1789||

    Bob got his law degree from a Cracker Jack box. What do you expect?

  • Bob from Ohio||

    I didn't lose the argument, too much screaming from the other side.

    I think the treatment of sex offenders [lifetime reporting to the police, residence limits] proves my point.

    A murderer or drug dealer released at end of sentence can live where he wants, unlike many sex offenders.

  • loveconstitution1789||

    Its right there in Article I, that states can still control people after their punishments for crimes are complete.

    You people crack me up.

  • James Pollock||

    "Its right there in Article I, that states can still control people after their punishments for crimes are complete."

    I've long believed that you were working from a different Constitution than the rest of us are.

  • loveconstitution1789||

    Retard Pollock finally arrived!

  • James Pollock||

    "I think the treatment of sex offenders [lifetime reporting to the police, residence limits] proves my point"

    Except that most sex offenders don't have lifetime reporting to the police, and they don't all have residence limits

    Federally-mandated sex-offender reporting includes... no residency limits. Some states add their own, but they don't have to.

  • mse326||

    True. Until death penalty then rape isn't enough. Even rape of a child isn't enough.

    I'm sure there is logic there that I don't understand (probably not)

  • apedad||

    Not sure why an amendment was needed.

    Is/was there anything that prevents bail from being withheld in these cases?

    Also, aren't we moving away from minimum/mandatory punishments?

    Each case is unique and judges/prosecutors should have the leeway to make decisions based on the facts of each separate case--not some general trend or statistics.

  • JeffDG||

    Each case is unique and judges/prosecutors should have the leeway to make decisions based on the facts of each separate case--not some general trend or statistics.

    The legislature, or in this case the people themselves acting in a legislative capacity by creating a constitutional amendment, have the absolute right to guide judges and prosecutors in their exercise of discretion. Judges do not make the law, they apply the law.

  • apedad||

    No, the people of Arizona do not have an absolute right to do anything that would against the U.S. Constitution which this appears to be.

    Again, it doesn't seem like there's anything to prevent a prosecutor from seeking denial of bail--it just needs to be addressed on a case-by-case basis.

  • donttrustthepress||

    "No, the people of Arizona do not have an absolute right to do anything that would against the U.S. Constitution which this appears to be."

    Fully agree. If the "presumption is great" enough to deny bail, doesn't it stand to reason that there is no presumption of innocence throughout the rest of criminal procedure?

  • loveconstitution1789||

    Yup JeffDG.

    You have some really bad statists on here.

  • Rev. Arthur L. Kirkland||

    "Often libertarian."

    In a masthead with no mention of movement conservatism.

    When the gullible and partisan constitute the target audience, I gather this works.

  • SKofNJ||

    Arthur, when I see your name attached to a comment, I know to skip over that comment as there's so seldom anything to be gained by reading it.

  • apedad||

    Apparently you don't skip over it...

  • SKofNJ||

    No, Arthur. I see your name. I skip over the comment.

  • Rev. Arthur L. Kirkland||

    'No, Arthur.'

    Apparently, you can't process names.

  • Rossami||

    Given the mass of contrary evidence about recidivism, I do not see how you can defend your point that a charge of sexual assault, however well-supported, is a "sufficient proxy for future dangerousness." I am unpersuaded by the surveys that you chose to cite in your brief.

    Your second point (about flight risk), while plausible, is completely unsupported by data. Do you have any actual evidence that those accused of sexual assault actually skip bail at any higher rates than for other crimes?

  • James Pollock||

    A CHARGE of sexual assault says nothing about recidivism.

  • Martin Jerushawitz||

    The flight risk point is simply unsupported by the data. I guess the author just figures that readers will feel like it is probably correct, so that's good enough.

    According to the Bureau of Justice Statistics' report, "In 2009, failure-to-appear rates were lowest for murder (5%) and rape (7%) defendants, and highest for those released after being charged with motor vehicle theft (28%)." The is exactly the opposite of what the author claims ("As a matter of common sense and human nature, the more severe the potential punishment, the higher the risk that a defendant will flee rather than face trial."). This is a good example of why public policy should be made based on empirical research, not someone's subjective assessment of "common sense and human nature."

  • donttrustthepress||

    Martin, thank you for that. It's pretty common for most writers to fudge statistics to make sex offenses seem more prevalent than it really is, and nice to see that some are finally getting around to questioning them.

  • donttrustthepress||

    As usual, proponents of laws making life untenable for registrants cannot provide anything to support their claims beyond complaining about the nature of sex crime in general (exaggerated by the small handful of truly horrific cases) and clinging to the categorically and repeatedly proven false claims of high recidivism rates.

    Take note of the following excerpt from the 4th Circuit and the North Carolina Court of Appeals:

    "The State tries to overcome its lack of data, social science
    or scientific research, legislative findings, or other
    empirical evidence with a renewed appeal to anecdotal case
    law, as well as to "logic and common sense." But neither
    anecdote, common sense, nor logic, in a vacuum, is
    sufficient to carry the State's burden of proof."

    The 4th Circuit was addressing premises restrictions. NC was addressing satellite based monitoring. The registrants in both cases cited empirical studies and Department of Justice statistics demonstrating the ineffectiveness of the law or program they were challenging. The government in both cases could only provide other court decisions based on anecdotes and conjecture.

    The only difference I see here is that now they want to to apply all punishments before conviction. Curiously absent is the requirement to register as a sex offender.

  • Martinned||

    Huh? 20% of Arizona voters voted against that proposition? Wow...

  • Velvet Thunder||

    "A substantial body of academic literature, supported by data collected by the U.S. Department of Justice, confirms that sex offenders reoffend at extremely high rates."

    I thought I remembered from previous articles, including on this blog, that the numbers cited in Salerno have since been debunked, so I looked it up. It only took 10 min on the Bureau of Justice Statistics website to find multiple reports, all of which are open to the public, that state the exact opposite. You'd think a lawyer writing an amicus brief to the SCOTUS would be able to come up with more accurate info than some guy procrastinating at work. I guess if you offer no context regarding criminal recidivism generally anything above 0% can be considered "extremely high."

  • SKofNJ||

    That was also my recollection.

  • santamonica811||

    My recollection as well (plus 15+ years working in Dependency Court...i.e., the court in California specifically aimed at non-criminal child abuse/neglect cases).

    I just don't think the actual data support the OP's argument.

    (Also, I have grave concerns about any law that seems quite overbroad. Can this be applied against a defendant who engaged in consensual--but still illegal--sex? Or against a defendant who, say, was nabbed for public urination and charged with a sex-related crime? Or, is this impossible, and the text makes it clear that it's only applicable against someone who engages in an actual sex act with violence attached?)

  • James Pollock||

    "I just don't think the actual data support the OP's argument."

    But... but... but... on SVU, the perp is ALWAYS a perv, and they always catch him just as he's about to re-offend. EVERY SINGLE WEEK!

  • donttrustthepress||

    santamonica811,

    Your grave concerns are well founded.

    Consider that not too long ago in Arizona, changing a baby's diaper was considered a sex offense by the letter of a poorly worded law. The state supreme court struck it down, but IMHO it shows how little thought goes into the enactment of laws regarding sex crimes and registration with little (if any) regard for their projected effects.

  • Eddy||

    I would suggest taking up the Privileges and Immunities Clause (and the 9th Amendment for federal cases) and examine whether there was, at the founding, a recognized right to bail in noncapital cases, with an exception for capital cases where the proof was evident and the presumption strong.

    I'd suggest that such a right to bail *was* recognized. Of course, rape was a capital crime in many states, so I recognize the flip side of the originalist argument - it would require reexamining a bunch of both "liberal" and "conservative" precedents on the Supreme Court.

  • Thomas L. Knapp||

    Denial of bail is by definition excessive bail and therefore constitutionally prohibited, as I'm happy to see other commenters point out.

    The sole and exclusive legitimate purpose of bail is to incentivize appearance at trial, full stop. Until such time as the defendant is convicted, he is presumed innocent and no judge is entitled to say "well, he PROBABLY did it, so ..."

    If the prosecutors are that sure he did it and scared to let him out, they should offer to go directly to trial, immediately -- not in 30 days, not in 15 days, not in 15 minutes, NOW. The Constitution guarantees a speedy trial. It doesn't guarantee six months of free time to walk the streets while preparing a defense.

  • Bob from Ohio||

    "Denial of bail is by definition excessive bail and therefore constitutionally prohibited"

    That explains why murder suspects are routinely granted bail.

  • loveconstitution1789||

    Denying bail is unconstitutional. Just because judges do it does not make it any less unconstitutional.

    There are no flight risk, severity of charge, or public threat exceptions to the right to non-excessive bail.

  • Bob from Ohio||

    "no flight risk, severity of charge, or public threat exceptions "

    Did you read that on a Cracker Jack box?

  • loveconstitution1789||

    Send me your law degree packaging, and I will let you know.

    I see now. You're a troll.

  • Paul Cassell||

    Of course, the amicus brief that we filed operates within existing Supreme Court case law -- which does recognize some circumstances can justify denying bail. See U.S. v. Salerno, 481 U.S. 739 (1987). Salerno, in turn, recounts this informative background on the historical roots of denying bail: "The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable" (quoting Carlson v. Landon, 342 U.S. 524 (1952).

  • loveconstitution1789||

    As I have numerous times on here, the SCOTUS is wrong a lot.

    We have the 8th Amendment BECAUSE of England and its restrictive bail policies. Otherwise, why include it in the BoR? It would be Common Law procedure then to give or not give bail.

    The Founders required that bail be given and it had to be non-excessive. The 14A set a minimum standard for all states.

  • loveconstitution1789||

    Government tends to be wrong in its constitutional jurisprudence in order to justify tyranny.

    Lawyers are always shocked as why many people dont like them. Most politicians are lawyers and lawyers have so twisted the law to nullify the Bill of Rights and much of the Constitution.

  • donttrustthepress||

    Paul,

    Your own statement killed your position. That "some circumstances can justify denying bail" does not support Arizona's constitutional amendment. No law or constitution can encompass all circumstances. Each circumstance must be reviewed on its own to pass constitutional muster.

  • MatthewSlyfield||

    "That explains why murder suspects are routinely granted bail."

    Yes, they are.

    My apologies if you meant that literally rather than sarcastically.

  • santamonica811||

    OJ Simpson is an example that all non-super-young people will immediately recall.

  • Bob from Ohio||

    I say its not routine. Even if set, its very high.

  • MatthewSlyfield||

    Set very high, true, but even in murder cases,it's my understanding that it is very rare for bail to be denied completely.

  • MatthewSlyfield||

    I say the only thing that would make it not routine is if bail was denied entirely to murder suspects more often than it's set.

    How high it's set is irrelevant if a bail amount was set at all.

  • SKofNJ||

    Sometimes, the defendant needs time to do his own investigation. Sometimes that involves engaging experts. Engaging an expert is always, in my experience, a very time-consuming process.

  • donttrustthepress||

    @ Thomas:

    Exactly right. I would also add that the convenience of the state and/or court (not much difference these days) is not a factor in determining the speedy trial time frame. Even if it were, I would argue that the rights of the defendant take precedence.

    I read about a guy jail accused of murder who had claimed self defense and was denied bail. Took the state 2 years to conclude that they couldn't get around his self defense claim and drop the charges. Don't know, but betting the public defender spent that entire 2 years trying to talk him into taking a plea. Struck me as the exact kind of circumstance that was supposed to have been prevented.

  • Lester224||

    No.

  • Bubba Jones||

    If we eliminated bail, would they have to be more selective in their prosecutions?

  • loveconstitution1789||

    Yes. Hence the restrictive bail schemes to pressure defendants into pleading guilty.

  • nystateofmind||

    Besides the Eighth Amendment argument, mandatory denial of bail violates the Due Process clause of the Fourteenth Amendment. You are depriving a liberty interest on the basis of a charge that the accused has not been found guilty of beyond a reasonable doubt and without adequate judicial procedure to challenge same.

  • ReaderY||

    One is reminded of the North Coarolima couple who had an argument at dinner. The law said "in the presence of a dangerous weapon." There was a knife on the table. A dinner knife counts as a dangerous weapon. Mandatory life imprisonment.

    There will always be the case which meets the technical definition of the rule, especially if "sexual assault" is defined very broadly, but which is nothing like what the framers intended.

    That said, one needs to be that exceptional case to have standing to challenge the rule. If bail could be denied based on ordinary criteria, striking down the law would not result in personal relief, and one wouldn't have standing to challenge it.

  • donttrustthepress||

    ReaderY,

    "There will always be the case which meets the technical definition of the rule, especially if "sexual assault" is defined very broadly, but which is nothing like what the framers intended."

    Case in point, the rash of cases where minors were convicted for distributing child pornography when they texted nude pictures of themselves to their friends. Guarantee after the first one was publicized, every DA in the country slapped themselves in the forehead and asked, "Why didn't I think of that?"

    At issue here is not exactly a law, though. It's an amendment to a state constitution that eliminates the presumption of innocence in certain cases.

  • piperTom||

    As much as I admire Justice Bolick, I find he is wrong in this case. Did he really write "sexual assault is by definition a uniquely horrific act"?! In a casual conversation, I would just consider "by definition" as hyperbole, but this is a written and presumably well considered supreme court opinion! What definition of sexual assault is he using?

    "Horrible" is a description of emotions, not of objective facts. The horror is in the victim's (or observer's) feelings and imagination. Also, "sexual assault" covers a spectrum of offenses, ranging from rape on one end to some over-done horse play on the other. If you want "uniquely horrific" crimes to be outside of normal bail consideration, then you should write "uniquely horrific" into your constitution -- and good luck with that.

  • donttrustthepress||

    Funny how judges are generally given a measure of latitude in determining penalties for those convicted of sex offenses to conform to the circumstances unique to that particular crime, yet the penalty is nearly always the same - max. The same with parole or probation conditions - anything that could be rationally (and often irrationally) related to sex or children is prohibited.

    I agree with piperTom. What's so horrific about consensual sex between an 18 and 17 year old (assuming the age of consent is 18)? Still a sexual assault by definition, isn't it? Lawmakers need to stop painting with broad brushes.

    Georgia (and many other states) started imposing life sentences on convicted drug dealers around 20 years ago and didn't realize their mistake until recently, when the prison population got too big. The life sentences still stick; they're just paroled for life after serving 7 years. Most return because recidivism for drug offenders is at least 5 times that of sex offenders no matter how its calculated.

    Give it another generation or two. At current rates, all prisons will be full of murderers and sex offenders (who statistically don't bother anyone after their sentences are served) and the gang members and drug dealers will remain at large to continually threaten society and its children.

  • Alan Vanneman||

    Watch Reason's Jake Sullum totally own Paul Cassell:

    http://reason.com/blog/2018/11.....id-about-s

  • ReaderY||

    In the right case, I think it's clear that the provision is unconstitutional. The constitution requires a particularized interpretation the defendant is actually dangerous. A blanket presumption will not do.

    The Arizona sexual assault law does not require any use of force, only lack of consent. There is a large gray area between the two, and can one easily imagine a case - such as identify theft or even simple mistaken identity - where there is legally no consent, but no force whatsoever, and no evidence the person represents any danger of violence. One can also easily imagine a case where the prosecuting witness claimed not to have consented but there may be substantial evidence she did. One need only look at the country's history of lynchings and false rape accusations.

  • ReaderY||

    Imagine a prostitute whose client argues over the bill. Is it reasonable for the state to give her the exclusive power to jail her customer, at her sole discretion, until he pays whatever she wants?

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