PHOENIX — The state Attorney General’s Office is asking the U.S. Supreme Court to reinstate a voter-approved provision of the Arizona Constitution that allows accused rapists to be held without bail while awaiting trial.
In legal papers filed in Washington, D.C., Assistant Attorney General Rusty Crandell argued the state’s high court — or at least a majority of the justices here — ignored legal precedent in concluding earlier this year that pretrial detention without bail is permissible only when there is a “legitimate and compelling” purpose and that restriction is narrowly focused. Justice Ann Scott Timmer, writing for the majority, said that means defendants are constitutionally entitled to be released pending trial when there is no showing they will be a danger to the community.
But Crandell said the crime of rape is “a uniquely horrific act” and there is a “frightening and high risk” that sex offenders will re-offend.
He also said the law — the one the Arizona justices overturned — 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.
And Crandell took a slap at the justices who voted to void the law.
He said courts should invalidate statutes only when necessary to comply with the Constitution “while leaving in place as much of the Legislature’s work as possible.”
“The Arizona Supreme Court has made a practice of doing the opposite,” Crandell told the nation’s high court.
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 posed a substantial danger to others and no conditions of release could assure safety.
The 2002 voter-approved state constitutional amendment added sex offenses to that list.
This case involves Guy Goodman, who was charged with sexually assaulting a woman.
At a pretrial hearing, a police officer testified that Goodwin, a guest in the victim’s home after a night of socializing, molested her while she was sleeping. The officer also said Goodman, when confronted with DNA evidence, confirmed the sexual assault.
A Maricopa County court commissioner said while there was evidence Goodman committed the offense, prosecutors failed to show he posed a “substantial danger to other persons in the community.”
At least part of that was based on the fact there was no evidence he had committed similar crimes in the seven years between the incident and his arrest or that he had threatened the victim.
Instead, the commissioner set bail at $70,000, required electronic monitoring of his movements and imposed other conditions, like not possessing any weapons.
The state Court of Appeals overturned that decision. But in a 4-3 ruling, the Supreme Court said the 2002 no-bail constitutional provision could not stand.
Timmer, in writing the majority opinion, said one problem with the 2002 ballot measure is that it did not provide any procedures to determine whether someone charged with rape would pose a danger if allowed out on bail.
Crandell, in his pleadings to the U.S. Supreme Court, said Timmer and her three colleagues were off-base in making that a requirement for prosecutors to prove.
“This court has repeatedly recognized that the government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest,” he wrote. And Crandell took particular aim at the Arizona justices for saying prosecutors have to show there is a danger to the community.
“Unfortunately, there is no way to predict with confidence when or whether a particular sex offender will re-offend,” he said.
He said in areas like these that are “fraught with medical and scientific uncertainties,” courts should not rewrite laws but instead “afford legislatures the widest latitude.”
If nothing else, Crandell said, the Arizona Supreme Court should have limited its ruling to the Goodman case and not voided the voter-approved law entirely.
“Even assuming for the sake of argument that there exist actions constituting sexual assault that do not implicate a sufficient community interest to overcome an arrestee’s interest in obtaining bail, those few circumstances are no basis for invalidating a statute in toto,” he told the justices.
“The Constitution is not so blunt and instrument,” Crandell continued. “If anything, it calls for judicial restraint in invalidating the work of the legislative branch or, as here, the people acting through direct democracy.”
The court has not decided whether to hear the state’s appeal.
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