Supreme Court Won't Reinstate Arizona Law Denying Bail In Rape Cases

By Claire Caulfield
Howard Fischer, Capitol Media Services
Published: Tuesday, January 15, 2019 - 9:02am
Updated: Tuesday, January 15, 2019 - 9:05am
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The U.S. Supreme Court on Monday refused to reinstate a 2002 voter-approved amendment to the Arizona Constitution which denied bail to anyone accused of rape.

Without comment, the justices let stand a year-old state Supreme Court ruling which said the seriousness of the charge, by itself, is insufficient to result in automatic denial of release pending trial.

The state's high court, in its 4-3 decision, said the only constitutional way to deny bail is for prosecutors to prove that the defendant in question poses a specific threat, and that there are no conditions of release that can be imposed that would still protect the public.

Monday's ruling came despite arguments by Assistant Attorney General Rusty Crandell that the crime of rape is a “uniquely horrifying act'' there is a "frightening and high risk'' that sex offenders will re-offend.

He also said that the law has procedural safeguards. That includes requiring prosecutors to prove to a judge that "the proof is evident or the presumption great'' that the defendant did, in fact, commit the crime.

None of that was sufficient to gather the necessary four votes among the justices to consider the arguments.

Prior to 2002, it was presumed that people charged with a crime were entitled to bail. There were only a few exceptions, like those for which the death penalty could be imposed, offenses committed while someone already was out on bail, and felonies where the person charged poses a substantial danger to other and no conditions of release could assure safety.

The 2002 voter-approved state constitutional amendment added various sex offenses to that list.

Justice Ann Scott Timmer, writing for the majority, cited prior U.S. Supreme Court ruling which concluded that pretrial detention without bail is permissible only when there is a “legitimate and compelling'' purpose and that the restriction in narrowly focused. She and three other justices said that means defendants are entitled to be released pending trial when there is no showing they will be a danger to the community, despite what Arizona voters approved.

But Justice Clint Bolick, in a stinging dissent for himself and two other justices, chided his colleagues for voiding the decision by voters to keep those accused of rape locked up following their arrest.

“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 wrote.

Bolick also pointed out what he said are safeguards in the bail-denial amendment.

He said judges can keep someone locked up only if the prosecution first shows that “the proof is evidence or the presumption great'' that the defendant did, in fact, commit the crime. Anyway, Bolick said, being locked up pending trial is not a huge burden, saying incarceration “will only be temporary.''

Timmer, however, said that's not the issue — or the standard.

“The question here is not whether sexual assault is a deplorable crime that endanger and dehumanizes victims,'' she wrote. “It is and it does.''

The question, Timmer said, is even if there is great proof of someone's guilt whether that person “will post an unmanageable risk of danger if released pending trial.'' And she said even data cited by prosecutors about recidivism rates of convicted rapists after release from prison do not provide a basis for categorical denial of bail.

Timmer also said courts can impose restrictions on those released to protect public safety, such as requiring their movements to be monitored by global positioning system devices.

This isn't the first time court have voided a provision of Arizona laws on bail.

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

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

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

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