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Volokh Conspiracy

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.