PHOENIX — Prosecutors are asking the Arizona Supreme Court to reinstate a law that allows some people accused of the sexual abuse of minors to be held without bail.
Deputy Maricopa County Attorney David Cole said the constitutional provision limiting access to bail was adopted by voters in 2002. He said the state Court of Appeals, in overturning the law enacted by lawmakers to implement that amendment, failed to give “due consideration to the overwhelming will of the people.”
“It has long been the law in Arizona that legislative enactments enjoy a strong presumption of constitutionality, and that the burden to overcome the presumption rests squarely on the shoulders of the challenger,” Cole said in legal papers filed with the state’s high court. And he said the attorneys for the two men at issue have failed to meet that burden.
“The people of Arizona determined that sexual conduct with a minor is an acute problem and that pretrial detention for those accused of that crime was in the best interest of the community,” Cole wrote.
State Solicitor General John Lopez IV, interceding in the legal dispute on behalf of Attorney General Mark Brnovich, Senate President Andy Tobin and House Speaker David Gowan, went even further.
He said Arizona has “a transcendent interest in protecting children from sexual exploitation.” And Lopez said that outweighs the “liberty interest” of someone who has only been charged with a crime.
The case involves two men charged in separate, unrelated incidents of various charges, including sexual conduct with minors younger than 15.
Both were initially held without bail based on the 2002 measure that says people charged with those crimes are not entitled to pretrial release “if the proof is evidence or the presumption great that the person is guilty of the offense charged.”
But in June, the state Court of Appeals said even those protections are legally insufficient. Appellate Judge Peter Swann said bail can be denied only if prosecutors can also show that no bail conditions or restrictions would ensure the protection of others.
He cited a 1987 U.S. Supreme Court decision that said the categorical denial of bail is unconstitutional. Swann said that means trial judges must make case-by-case determinations of whether a person can be released — and under what conditions — while awaiting trial.
Cole does not dispute that ruling. But he said the facts in that case are different than here. He said the Arizona law does not parallel the federal law at issue in that case.
Anyway, he argued, the Arizona law is very specific, applying to those who have sexual conduct of a minor younger than 15. And Cole said the measure is not an absolute bar to bail but has conditions.
That includes a hearing where a prosecutor must present evidence sufficient to show it is likely the defendant committed the crime. Cole said that provides sufficient safeguards for individual liberty while ensuring the community is protected.
Lopez, for his part, said there is overwhelming evidence that denial of bail for those who prey on minors is appropriate, calling it “a crime that devastates victims, future generations and communities.”
He said lawmakers recognize how serious a crime this is, with offenders facing a presumptive prison term of 20 years, and lifetime imprisonment if the victim is 12 or younger. And Arizona law allows potential indefinite commitment in the Arizona State Hospital as a sexually violent person after a prison term is served.
Lopez said there is other evidence to show pretrial detention benefits the community.
“Studies show a high rate of recidivism among pedophilic sex offenders generally, ranging from 10 to 50 percent,” he wrote.
Swann, in writing the appellate decision saying defendants could not be categorically denied bail, was careful to say he was not excusing the offenses charged here.
“Sexual conduct with a young minor is unquestionably a serious offense that involves a vulnerable class of victims and severe penalties,” he wrote. “But it cannot serve in every case, as a reliable proxy for unmanageable flight risk, witness intimidation, unmanageable risk to victims or any other plausible bail consideration.”
That appellate court ruling was not unanimous.
In a dissent, Judge Andrew Gould rejected the contention that denial of bail in certain circumstances is unconstitutional.
He said the express purpose of the statute and its companion state constitutional provision “is to protect victims and the community.” That, he said, makes its purpose “regulatory, not punitive.”
The high court has not said when it will rule on the matter.
This isn’t the first time an appellate court has voided a provision of Arizona laws on bail.
In 2014, the 9th U.S. Circuit Court of Appeals tossed out 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.