Arizona Court of Appeals Changes Bond Requirements for Sex Offenses

At the November 2002 general election, Arizona voters passed ballot Proposition 103 amending Article 2, Section 22 of the Arizona Constitution and A.R.S. § 13–3961, both of which governed offenses for which the accused could be held without bond.  Previously, only capital offenses were non-bondable as a matter of law.  Proposition 103 added to the list of capital offenses the charges of sexual assault, sexual conduct with a minor under fifteen and molestation of a child under fifteen years of age.  The effect of the proposition was to make the most serious sexual offenses ineligible for any kind of bail as a matter of right.  In other words, there is a right to bail in Arizona except where “the proof is evident or the presumption great” that the accused has committed one of the offenses listed above.

Historical Foundation

In the mid-17^th century, the accepted general rule was against pre-sentence incarceration and in favor of bail except for capital crimes; the limitation in capital cases was due based on the assumption that the accused would flee to save his life even if bail were posted.  Before colonization there were over 200 so-called “capital crimes” but that list was narrowed to about twenty in the common law of the American colonies.

The federal and state standard compared

In United States v. Salerno, 481 U.S. 739 (1987), the United States Supreme Court authorized pre-trial detention on the basis of future dangerousness, but only if certain procedural safeguards were met.  Bail could be denied for certain categories of serious felonies because the government was first required to prove by clear and convincing evidence that no release conditions “will reasonably assure … the safety of any other person and the community.”  After proposition 103, and consistent with Salerno, A.R.S. § 13-3961(D) provides that persons charged with terrorism or any dangerous crime against children may be denied bail when the state demonstrates that the person likely committed the offense and shows by clear and convincing evidence 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.”  However, A.R.S. § 13-3961(A)(3) holds that persons charged with sexual conduct with a minor under the age of fifteen must be denied bail upon nothing more than a sufficient showing that they likely committed the offense.  The amended statute never addressed the availability of release conditions that could assure the safety of the victims and the community.  Since that time, sexual offenders charged with dangerous crimes against children have almost always been uniformly held under sub-section (A)(3) without bail upon a showing  that “proof evidence and presumption great” that a listed crime had been committed.  This was done without the benefit of any kind of release hearing to determine their actual risk to the community, contrary to the requirements of Salerno.

A change in the law for sex offenses

However, on June 14, 2016, Division One of the Arizona Court of Appeals held in Simpson v. Miller, No. 1 CA-SA 15-0292, 2016 WL 3264151 (Ariz. App. June 14, 2016), in a 2-1 decision, held that the changes proposition 103 made to the bail provisions are unconstitutional.  It held that, consistent with all the requirements of Salerno, the accused is now entitled to a two part hearing where the state must show: (1) that proof is evident and the presumption is great that the accused committed the charged crime; and (2) by clear and convincing evidence that the defendant is a danger to the community and that no condition or combination of conditions can “reasonably assure the safety of the community or any person.”  Simpson v. Miller, 1 CA-SA 15-0292, 2016 WL 3264151, at *4 ¶ 15 (App. June 14, 2016). If a friend or loved one is currently being held without bond and is charged with a sexual offense, now may be the time to challenge the conditions of confinement.  We intend to examine all of the circumstances of any of our clients so confined and file the appropriate paper work.