The Arizona Supreme Court has declared certain provision of the state constitution invalid. Those provisions were inserted back in 2002, when voters in Arizona approved an amendment changing the circumstances in which a criminal defendant may be released on bail.
The 2002 amendment stated in part that where a defendant is accused of sexual conduct with a minor (statutory rape) under the age of fifteen, or sexual contact (touching or fondling) with a child under the age of fifteen, the defendant is ineligible for bail pending trial. Earlier this month the Supreme Court struck down the provisions which categorically denied bail in these cases. The lawsuits included one brought by a man who has been charged with statutory rape. He has been held in jail without bail for almost three years.
The outcry after the decision of the state’s highest court appears to be largely based upon a misconception. Those who argue vehemently against the court’s ruling choose to ignore two things:
- First, the change does not require that a sexual predator or any defendant accused of a sex crime be released on bail. It simply gives the court the option of permitting bail in an appropriate case. The provision that was struck down took all discretion away from the judge, and blocked bail no matter what the facts were.
- Second, the provision required the court to ignore issues such as whether the defendant presented a danger to the community, whether the defendant was likely or unlikely to appear for trial, and the weight of the evidence against the defendant. There are some of the important questions at a bail hearing.
The ruling by the AZ Supreme Court stated flatly that the provision was unconstitutional on its face, noting that it was in conflict with the due process clause of the 14th amendment. Essentially, it ignored the presumption of innocence, as well as the other issues noted above. Justice Clint Bolick said in his opinion, which was joined in by four other justices, that the provision violated the fundamental right to be free from restraint.
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Phoenix, AZ 85004
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