Sex Crimes

Denying Bail

The Arizona Supreme Court got it right: categorical denials of bail to persons charged with sexual assault violates the Constitution.


In a posting here on the Volokh Conspiracy last week ("Is a Categorical Denial of Bail for Sex Offenders Constitutional?"), Paul Cassell summarized an amicus brief he co-authored urging the US Supreme Court to grant certiorari in Arizona v. Goodman, a case involving a provision of Arizona law under which pre-trial bail must be denied to persons charged with sexual assault where "the proof is evident or the presumption great that the person is guilty." [The Scotusblog page for the case is here.]

Arizona's general bail statute provides (as, I believe, do the statutes of all other States) that courts may deny bail to persons charged with a felony, but only after an individualized determination that the defendant "poses a substantial danger to another person or to the community."*

*The Arizona general bail statute, AZ Rev. Stat. 13-3961, provides that a person charged with a felony offense "may not be admitted to bail" where the court finds, after a pre-trial bail hearing: (a) that there is "clear and convincing evidence that the person charged poses a substantial danger to another person or the community"; (b) that "no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community"; and (c) that "the proof is evident or the presumption great that the person committed the offense."

The provision at issue in Goodman replaces this individualized determination with a categorical one: all persons charged with sexual assault are to be denied bail, notwithstanding the constitutionally-mandated presumption of innocence, without the need to produce any evidence showing that they are a danger to the community; they will, in effect, be presumed dangerous (at least, if "the proof is evident or the presumption great that the person committed the offense").

The Arizona Supreme Court struck this provision down as an unconstitutional deprivation of due process. Due process, the court held, requires an individualized determination of dangerousness unless the crime charged "inherently demonstrates that the accused will pose an unmanageable risk of danger if released pending trial." The court, by a 4-3 majority, found that it did not:

"[The law] is facially unconstitutional because it categorically prohibits bail without regard for individual circumstances. [It] does not provide any procedures to determine whether a person charged with sexual assault would pose a danger if granted pre-trial release. A court's finding that the proof is evident or the presumption great only shows a likelihood that an accused committed the charged sexual assault. It does not address the likelihood that an accused would commit a new sexual assault or other dangerous crime if released pending trial….

To be clear, courts can [and must] deny bail to a person charged with sexual assault when the proof is evident or the presumption great as to the charge and that person 'poses a substantial danger to another person or the community.' Before doing so, however, courts must engage in an individualized determination …"

Paul's brief argues they got it wrong: Arizona can, consistent with the Constitution, "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," and "a well-supported charge of sexual assault is a sufficient proxy for future dangerousness":

As this Court recognized in Smith v. Doe, releasing sex offenders pending trial presents a substantial danger to the community because the "risk of recidivism posed by sex offenders is 'frightening and high.'" 538 U.S. 84, 103 (2003) ("high rate of recidivism among convicted sex offenders" means they pose risk of future "dangerousness as a class")…. A substantial body of academic literature … confirms that sex offenders reoffend at extremely high rates — regardless of how reoffending is defined 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"

He is, in my opinion, wrong about that - wrong on the facts, and wrong on the law.

The Facts. The recidivism statistics** for sex offenders, as Paul's brief illustrates, have been much discussed in connection with this case (and many others involving sex offenders). Although the Supreme Court did indeed declare back in 2003 that the recidivism risk for sex offenders is "frightening and high" - "estimated to be as high as 80%," in Justice Kennedy's words - that turns out (as Ira and Tara Ellman have convincingly demonstrated here) to have been based upon no actual evidence whatsoever, having been derived from a single, unsupported, and entirely uncorroborated sentence in a 1986 article in Psychology Today. [Jacob Sullum, here at, discusses the remarkable and damaging persistence of this "frightening and high factoid" in his article here; see also Adam Liptak's NY Times article "Did the Supreme Court Base a Ruling on a Myth?"]. As Sullum puts it, "even if you think Arizona's bail ban is good policy (or at least constitutional), you should be troubled by the continued judicial reliance on repeatedly refuted claims about sex offenders that were erroneously endorsed by the Supreme Court 16 years ago."

**Note: Technically speaking, of course, the recidivism data for persons who have been convicted of sex offences is not strictly relevant to evaluation of this statute, insofar as the persons covered here have only been charged, and not convicted, of any crimes.

The actual data on sex offender recidivism are complicated, often contradictory, nuanced, and do not support the notion that rates are uniformly or significantly higher for sex offenders than for other categories of crimes. [For a summary of the many studies in this area, see the Scholars' Amicus Brief in Vasquez v. Illinois, here]. The Arizona Supreme Court got this right:

The State points to recidivism rates among sex offenders as evidence of the likelihood that sexual assault arrestees would commit a new sexual assault pending trial if released on bail. The cited empirical studies are not illuminating, however, as they concern a wide variety of sex crimes besides sexual assault, arrive at disparate conclusions, and for the most part do not focus on the relatively short time period between arrest and trial. Regardless, none of the studies cited reflects that most convicted rapists re-offend, the highest number being 5.6% reoffending within five years of release from prison. And the only cited study concerning accused rapists released on bail reflects that 3% committed another unspecified felony pending trial. [emphasis added]

The Law But interpretation of the recidivism statistics is not, in my opinion, at the heart of this case. The presumption of innocence - as fundamental a constitutional principle as we have - is at the heart of this case. To deprive an individual of his liberty because he is a member of a class that, statistically speaking, is more likely than others to commit a crime is an odious principle that is not consistent with the due process of law. Many categories of individuals, surely, have higher-than-average recidivism rates: unemployed males between the ages of 18 and 25; persons earning less than $25,000 a year; high-school dropouts; drug addicts; …

They are - all of them - presumed innocent until the State has persuaded a jury of their peers, beyond a reasonable doubt, that they are guilty as charged.

So, too, for persons charged with sex crimes, no matter how heinous. They can, as the Arizona court was at pains to acknowledge, be detained pre-trial in appropriate circumstances; but those circumstances must be such as to demonstrate that they - not just the members of the class to which they belong, but they themselves - are a continuing danger to others. It is a high bar. It is supposed to be, because it protects us all against the arbitrary imposition of punishment. The recidivism statistics might be relevant as evidence in a particular case; but they cannot be dispositive, lest we punish people, in effect, for the behavior of others whom they resemble in one way or another.

NEXT: How Mandatory Minimum Reform Will Work with "Stacked" Charges

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  1. 8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    The government is prohibited from denying bail and setting it at an excessive amount. Also no bail denial exceptions listed in the US Constitution for flight risk, severity of charges, or public threat.

    The 14th Amendment forces all states to have a minimum standard of protections in their Constitutions for bail rights.

    The fact that judges cannot even follow the Constitution should tell you a lot about their motivations.

    1. I do not see where the eighth amendment prohibits denying bail. It prohibits EXCESSIVE bail; there reasonable bail is acceptable.
      And as long as I am ranting; to be punishment, in the behavior modification sense, a punishment must be both cruel and unusual. You cannot punish someone by giving them an ice cream cone and saying "this is punishment for your theft". (not cruel) You cannot punish someone by letting them go to work and saying "going to work today is your punishment for speeding". (not unusual)

      1. there = therefore in a world without edit

      2. The founders would have never included anything about bail then.

        If the government can create any excuse to deny bail, why prohibit the government from charging too much bail for appearance at trial?

      3. Evidently English sheriffs commonly denied bail pending trial.

        After habeas corpus petitions were used more and more to free defendants, English sheriffs switched to setting excessive bail that clearly defendants could not afford.

      4. You are correct, 8A does not require bail to be set. Defendants can be released pending trial without the requirement of bail.

        Going beyond 8A, where in the constitution is the government authorized to jail defendants pending trial verdict?

    2. It is at least clear as a historical matter that bail can be denied in capital cases.

      So start from there.

      1. That exception is not listed in the 8th Amendment.

        History does not trump the Constitution protections listed.

        1. History informs the meaning of constitutional provisions.

          And, it's important to note, the entity which decides how constitutional provisions has decided that history informs their meaning. So even if you think it shouldn't, that issue has been decided by the final arbiter of such things and no serious attempt at constitutional interpretation may ignore it.

          1. Well, the SCOTUS is wrong as they often are.

            Dismissals of "oh well, the court decided what our Constitution says" is unacceptable. Mainly because we can all see what the Constitution says and it does not say what the court wants it to say.

            This is not mere courts figuring out how to implement a Constitutional mandate on the federal or state governments. This is the SCOTUS actively dismissing what the 8A says about the absolute right to bail.

          2. BTW: The SCOTUS is NOT the final arbiter of such things.

            The People are.

            1. Where can I vote on this? I promise that I'm a white male landowner if that matters.

  2. Happy to see so many folks push back against the junk science in Cassell's article. Dishonest statistics pollute way to many debates these days. I wonder if there is a way for him to be sanctioned for submitting this crap to a court?

    1. "I wonder if there is a way for him to be sanctioned for submitting this crap to a court?"

      Not likely. Notice attorneys aren't required to be sworn in when arguing before a court. I think the presumption is that they're always being honest and factual, no matter what they say. I personally wonder how different juris prudence would be if they actually were so required.

      1. Without taking any position on this specific instance, the implication of your statement is untrue. Everything an attorney submits to a court is subject to sanction.

        1. I've never seen or heard of an attorney being sanctioned for lying or misleading in any presentment made to any court. And if there are any, those cases are pretty few and far between. Attorneys get sanctioned, to be sure, but only for misconduct outside the courtroom as far as I can find.

          I didn't mean to imply that attorneys are typically dishonest with impunity when arguing at court. I meant to outright say it. It's one thing to fall for a client's lies regarding circumstances. It's another to argue that which is knowingly false. Still arguing high recidivism among sex offender registrants is a glaring example.

      2. "Notice attorneys aren't required to be sworn in when arguing before a court."

        Nope. They're required to be sworn in to even get in front of the bar, before they can even practice law, and they're bound by ethics rules which include a duty of candor to the tribunal.

        Google "ABA model rule 3.3"

  3. Justice Bolick's dissent, Prof. Cassell's contributions in this case, and the Volokh Conspiracy prove that you can wrap movement conservatives in garish libertarian drag -- in many cases, they do it for themselves -- but you can't separate the authoritarian from the right-winger.

    1. Rev. Kirkland,

      Discrimination against those on the sex offender registry is not left or right wing. At present, it's one of the few things both agree on. The insanity directed against registrants will subside as more friends, family members, and employers are burdened by it, but not before society as a whole finds a new scapegoat that both left and right wingers can oppress without social or political backlash.

      While Arizona is typically a right wing state, I wouldn't classify it as authoritarian in the sense you seem to do. While I strongly disagree with its content, I'll give them credit for at least the effort to pretend what they were doing was within legal limits by making it amendment to their state constitution, rather than just reinterpret existing law to fit the politics of the moment, as left wingers like to do.

      1. Why did you address that comment -- which so far as I can observe was not address my point, unless it attempts to argue that blanket bail prohibitions are not authoritarian -- to me? Thank you.

        1. Your original post struck me as claiming Arizona's amendment was conservative action dressed as Libertarianism. I was only pointing out, as stated in the first sentence, that discrimination against sex offender registrants is not a left or right wing thing; both do it, do it frequently, and get more and more insane while doing it.

          There is a difference in the means. The right wing likes to rewrite the law. The left likes to interpret existing law to fit the politics of the moment. Neither was correct in this instance because, once again, outright bail denial is unconstitutional. Authoritarian, totalitarian, socialistic, whatever - it's still unconstitutional no matter what other adjectives are put in there.

          1. "outright bail denial is unconstitutional."

            No it isn't. Bail denial based on accusation rather than on the individual circumstances of each particular case is unconstitutional, because "equal protection" and "due process". But an individual who is determined to be a high flight risk at a hearing at which he (or she) is given an opportunity to argue that they aren't a flight risk may be denied bail. Fail to appear in court a couple of times, and you don't get to complain that they won't take your word for it that you'll show up to court THIS time.

      2. "Discrimination against those on the sex offender registry is not left or right wing. At present, it's one of the few things both agree on."

        Compare the restrictions placed on registrants from state to state.
        The federal law requires that states have a registry, and the minimum levels of maintenance of the registry. But it doesn't require registrants to do anything but... register, periodically, in person, in the local law enforcement offices.
        SOME states pile on a number of additional requirements that registrants are required to adhere to. Limitations on residency, for example.
        Now... compare the restrictions place on registrants in, say, "blue" Oregon, and say, "red" Alabama. Do these seem equal to you? Like there's agreement between the two "teams"?

  4. Individual consideration is never a bad thing. I would suspect that most of these offenders (and certainly the worst ones) would be held without bail or with an extremely high bail amount that they could not meet even if individual consideration were given. But there might be a case where the equities go the other way.

    Remember as well that electronic monitoring devices exist. It isn't as though if you bail one of these offenders out you lose any ability to prevent recidivism.

    1. How does an electronic monitor prevent sex criminals from committing sex crimes? Does your electronic monitor work like a chastity belt?

  5. One could, of course, grant bail....and a concealed carry permit and issue sidearms to every alleged victim. Then the 'problem', if it exists at all, might prove to be self-correcting.

    1. CSP Schofield,

      Should permits and sidearms be issued to minors, blind, or developmentally disabled ALLEGED victims as well? What about ALLEGED victims of fabricated or exaggerated crimes?

      Not a terribly well thought out "solution."

      1. Government should not be licensing gun possession anyway.

        Its a Constitutional protect right for any American to keep and bear Arms.

        No permit necessary. I dont need government permission to buy, own, or carry any weapon that I want.

        1. "Government should not be licensing gun possession anyway.
          Its a Constitutional protect right for any American to keep and bear Arms."

          What is it about your favorite Constitutionally-protected right that makes it different from other Constitutionally-protected rights that require licenses?

      2. "Should permits and sidearms be issued to minors, blind, or developmentally disabled ALLEGED victims as well?"

        What's the problem? I mean, hunters spend considerable time carrying their weapons, seeking their selected prey animals, and it's not like any of THEM ever shoot something that turns out not to be their prey animal, right? None of THEM ever takes an animal that isn't supposed to be shot?

  6. I still maintain that the crime of arrest should not be a factor whether or not bail is to be granted, and how much if so. Doing so erodes the presumption of innocence in the matter at hand. For that matter, to deny bail because "evidence is evident or the presumption is great" specifically eliminates the constitutional presumption of innocence. Someone with a history of (competently diagnosed) mental illness or not showing up for trial after other arrests, for example, would be one that should not qualify for bail, regardless of what the previous offenses were. Concurrently, it shouldn't matter if his criminal record is a mile long; if he always showed up when he was supposed to for whatever proceeding, bail shouldn't be required from him.

    A repeated point, but one that bears repeating - the whole point of bail is to ensure the accused shows up for trial. The problem is that nowadays it's used to punish someone for crimes for which he hasn't been convicted. Because bail amounts are usually set based on the crime of arrest and to ensure an accused must buy a bond (many jails won't even accept bail from anyone but licensed bondsman) rather than the means of the accused, its effects are nothing short of punitive. If acquitted, the accused cannot recover the cost of a bond or seek compensation for any other loss imposed or aggravated by pre-trial incarceration.

    1. As I say above, the historical practice evidences that at the very least denial of bail in capital cases is constitutional.

      But let me ask you this. Let's suppose they arrest a mafia hit-man who is implicated in the murder of material witnesses in criminal cases in the past. While there is no jury verdict yet, the evidence against this person is extremely strong. Let's suppose further that there are intercepts that indicate that his intention is to murder the material witnesses for his case and intimidate anyone from testifying against him if he is let out of jail on bail?

      Is it your position that the Constitution requires that even he should be released on bail, because the charges are not yet proven?

      I am very sympathetic to the idea that preventative detention should be sparingly used and even that the burden of proof to justify it should be pretty high. But I would think that an argument that you can never preventatively detain no matter how strong the evidence is going to run into real practical problems even if one wishes to disregard the history of the Eighth Amendment.

      1. No one, myself included, ever said bail shouldn't be denied based on specific circumstances of an accused. Specific to your example, that hit-man had plenty of history outside of the arrest at hand ("implicated in the murder of material witnesses in criminal cases in the past"); set or deny bail accordingly.

        The issue is blanket denial of bail based on charges not convicted. It sounds to me like there's no justification for such practice if the only arguments in favor of it are fictional scenarios of rare or infrequent crimes. Laws were never meant to address individual crimes or circumstances. Denying the rights of the entire population or a specific segment of it based on the actions of a few eventually and inevitably leads to tyranny.

      2. Segregation was not constitutional and that was historically practiced.

        There is no authority in the US Constitution or any state Constitution that allows government to force businesses to not serve certain races or separate people based on race.

        That is where some of you people get off the rails. If the US Constitution or state constitutions dont give a government entity a general or specific power, then they cannot do it.

  7. I really don't get the obsession with elevating sex crimes categorically into a super duper category over every other crime known to man including murder and genocide. Guess the feminist activists and womyn's studies professors of today are the same as the Puritan school marm and gossip of yesterday, always pedestalizing and living in fear and awe of sex.

    1. What inclines you to perceive that feminists and women -- rather than 'law-and-order' conservatives and largely male legislators -- promoted the change in Arizona law in particular or harsh treatment of "sex offenders" in general?

      1. This is a rare issue both the moral majority and feminists agree on. But the power of the former has waned considerably since GWBII, and its clear to any reasonable observer that the latter is the primary driver of the criminalization of sex today. Plus I would argue 'feminist' elements and arguments are at the core of both camps and society in general's modern views toward sex. Women's groups were the drivers of fixing the 18+ age of majority in the early 20th century. Media campaigns from both a profeminist and law and order angle targeted toward primarily frightened suburban woman about battered exploited females in dungeons around every corner and rapists/pedos behind every tree was responsible for the rapid rampup of punishment and enforcement against sex crimes through the 80s-2000s.

        Let's face it, regardless of whatever propaganda has brainwashed you, women are and always have been the primary gatekeepers of sex in general. Men left to their own devices don't really care and it'd probably still be the wild west in this area if it were entirely up to them.

        1. Let's face it, regardless of whatever propaganda has brainwashed you, women are and always have been the primary gatekeepers of sex in general.

          Does the incels' lament underlie every issue for current conservatives, or just most of them?

          1. So you have nothing further to add than ad hominems. Why didn't you just say so.

            1. You didn't answer the question.

      2. Women and feminists have always been the primary protagonists of harsher penalties for sex crime in general. Some carry it to ridiculous extremes and presume all men are rapists and child molesters, particularly those that disagree with them on this or any other issue.

        While some legislators - conservative, liberal, are otherwise - are fully on board with that, many are just pandering. They know the mere perception of being "sex offender friendly" is political suicide and will continue to cater to the insanity of current sex offender legislation knowing full well that none of it is fair, effective, or economical.

        There'a a measure of hypocrisy as well. The same crowd that vilified Kavanaugh based on decades-old, unsupported allegations sprung to Clinton's defense against similar charges, primarily by attacking his accuser (which is not allowed anymore). I also think they wouldn't have been so supportive if Al Franken were a Republican; they would have been screaming for prison and registration.

        1. Many male social conservatives believe that women are helpless (or should be helpless if they are not) and need to be over-protected from men in general. They are a big part of the harsher penalties coalition. Not saying that there aren't self-defined feminists who share this predilection.

  8. The traditional jurisprudence is that constitutional rights, including 8th amendment rights, can be overcome based on a compelling state interest. Thus the state can quarantine people with diseases by force, impose curfews and other restrictions after disasters, draft people, and do other things that would normally violate their rights.

    So it can deny bail based on a compelling safety consideration. This is why it can deny bail, but only after an individualized adjudication that a person is individually dangerous.

    The text says none of these things. But it never specified exceptions for drafts, quarantines, curfews, evacuations, etc., either. The general principle is that a constitution should not be construed as a suicide pact.

    1. The problem is that sexual assault charges can be filed based on false accusations, or for things that no sane person would consider sexual assault.

      For example, take statutory rape. Statutory rape is a sexual assault charge, where both parties did actually mutually consent to sex (if one or more did not the charge is not statutory) but a law says they could not. Going with Arizona laws, suppose a 14 year old and a 15 year old had consensual sex. By the laws of Arizona, even if the 14 year old pressured the 15 year old into it, the 15 year old committed statutory rape, which is a sexual assault.

      So a kid gets to spend days, weeks, possibly months in jail because bail is categorically denied.

      Or suppose a woman gets drunk, has sex, and can't quite remember who she slept with. She is 95% sure it was one particular guy (but is wrong) and accuses him of taking advantage of her while she was too drunk to consent. That's a sexual assault charge right there, and given how long it takes police to test rape kits, a guy who didn't have sex with her at all could spend years in jail awaiting trial because sexual assault is treated categorically.

      If a constitution is not a suicide pact, then no mere statute can be either. Yet courts happily convict people who break the law to avoid unpleasant outcomes from obeying it every day.

      1. Excellent post. I'd only add that where a 14 and 15 year old had consensual sex, both would actually have committed statutory rape, not just the 15 year old. Granted, only the older one would ordinarily be charged, but this is Arizona, who once made changing diapers a sex offense.

        The idea that prosecutors are only concerned with truth, justice, and the American way is as antiquated as a rotary telephone. Nowadays, they are only concerned with convictions and conviction rates. They want their resumes to read something like "20,000 felonies convicted for 2 million years incarcerated," even though in truth it was 200 incidents and 1.8 of those 2 million years run concurrently. They love sex crimes in particular because convictions for them are virtually guaranteed since they don't require corroboration.

    2. Because drafts, quarantines, curfews, evacuations, etc are unconstitutional and cannot legally be carried out.

      Just because The People let these things happen does not make it okay, legal, or constitutional.

      There is also nothing in the Constitution that says that government cannot advocate and convince peopel to sign up for the Selective Service, voluntarily quarantine themselves, stay indoors after 10pm, leave a disaster area....

  9. The last sentence of this article refers to the practice of denying bail for precautionary reasons as "punishment." Up to now, the courts have brushed aside valid objections to such extreme civil liberties infringements as VAWA restraining orders (when imposed on someone never convicted of a crime) and sex offender registries simply by asserting that restrictions such as these are not punishment but precautions.

    I believe that all of them should count as punishments, for purposes of both the ban on ex post facto laws and the Eighth Amendment ban on cruel and unusual punishments.

    1. One has to wonder what exactly some of these judges would consider "punishment." The reasoning used every time I searched the phrase "not punishment" in any appellate court archive is simply idiotic. Best example - the sex offender registry is not punishment because legislatures never intended them to be (Isn't that like saying the Patriots didn't lose the Super Bowl because they didn't intend to?). Regardless or original intentions, look at what it's become. How on earth can any rational person not consider it punishment?

      The Arizona bail amendment is just another example of insane laws and rules imposed on those convicted of sex offenses under the false presumptions that it will lead to that person committing more sex offenses and has committed untold numbers (though never zero) of previous ones. Take any given sex-offender-specific law and apply the reasoning to any other class of crime to see how absurd it really is.

  10. Simple solution -- ask the dissenting judges whether they personally would be okay with being held without bail if someone falsely accused them of sexual assault.

    1. Just start impeaching judges for failing to follow the Constitution.

      Non-excessive bail is a right of all defendants [period]

  11. The majority is right.
    Due process requires that every one at least get a fair shot at a bail hearing.
    In some, rare, cases, remand without bail is totally warranted. But to make the law that EVERY defendant in a class is denied a bail hearing seems pretty flatly unconstitutional--again, not so much on 8th amendment, but on 5th amendment grounds.

    1. The 8A does not require a bail hearing. It requires non-excessive bail for every defendant.

      Defendants can also be release on no-bail release.

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