State of Arizona v. Hon. wein/goodman , 417 P.3d 787 ( 2018 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA, Petitioner,
v.
THE HONORABLE KEVIN B. WEIN, COMMISSIONER OF THE SUPERIOR COURT
OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Commissioner,
GUY JAMES GOODMAN,
Real Party in Interest.
No. CR-17-0221-PR
Filed May 25, 2018
Appeal from the Superior Court in Maricopa County
The Honorable Kevin B. Wein, Commissioner
No. CR2017-108708
AFFIRMED
Opinion of the Court of Appeals, Division One
242 Ariz. 352 (App. 2017)
VACATED
COUNSEL:
William G. Montgomery, Maricopa County Attorney, Lisa Marie Martin
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona
James J. Haas, Maricopa County Public Defender, Nicholaus Podsiadlik
(argued), Jamie Allen Jackson, Deputy Public Defenders, Phoenix,
Attorneys for Guy James Goodman
STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Rusty D. Crandell (argued), Assistant Solicitor General, Phoenix,
Attorneys for Amicus Curiae Arizona Attorney General
David J. Euchner (argued), Tucson, Deputy Public Defender, Attorney for
Amici Curiae Arizona Attorneys for Criminal Justice and Pima County
Public Defender
Jared G. Keenan, Kathleen E. Brody, Phoenix, Attorneys for Amicus Curiae
American Civil Liberties Union Foundation of Arizona; Andrea Woods,
American Civil Liberties Union Foundation Criminal Law Reform Project,
New York, NY, Attorneys for the American Civil Liberties Union and the
American Civil Liberties Union of Arizona
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICE
PELANDER joined. JUSTICE BOLICK, joined by JUSTICES GOULD and
LOPEZ, dissented. JUSTICE GOULD, joined by JUSTICE LOPEZ,
dissented.
JUSTICE TIMMER, opinion of the Court:
¶1 Persons charged with sexual assault must not be released on
bail if they pose a danger of committing new sexual assaults or other
dangerous crimes while awaiting trial. The question here is how this may
be accomplished in a manner that furthers this public-safety goal while
preserving an accused’s constitutionally guaranteed liberty interest.
¶2 Article 2, section 22(A)(1), of the Arizona Constitution and
A.R.S. § 13-3961(A)(2) categorically prohibit bail for all persons charged
with sexual assault if “the proof is evident or the presumption great” that
the person committed the crime, without considering other facts that may
justify bail in an individual case. We hold that these provisions, on their
face, violate the Fourteenth Amendment’s Due Process Clause. Unless the
defendant is accused of committing sexual assault while already admitted
to bail on a separate felony charge, the trial court must make an
individualized bail determination before ordering pretrial detention. See
Ariz. Const. art. 2, § 22(A)(2)–(3).
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
BACKGROUND
¶3 The Arizona Constitution provides that all persons charged
with crimes shall be bailable unless the accused is charged with a crime that
falls within an exception and the proof is evident or the presumption great
that he committed that crime. Ariz. Const. art. 2, § 22(A). Before 2002, these
exceptions were limited to capital offenses, felony offenses committed
while the accused is on bail for a separate felony charge, and felony offenses
when the person charged poses a substantial danger to any other person or
the community and no conditions of release would reasonably assure
safety. A.R.S. § 13-3961, historical note.
¶4 In 2002, Arizona voters added to the listed exceptions by
passing Proposition 103, which amended article 2, section 22(A)(1), to
forbid bail when the proof is evident or the presumption great that an
accused committed sexual assault, sexual conduct with a minor under
fifteen years of age, or molestation of a child under fifteen years of age
(“Proposition 103 offenses”). See id.; see also A.R.S. § 13-3961(A)(2)–(4)
(codifying Proposition 103). Proposition 103 also declared that the
purposes of bail and any conditions for release include “[a]ssuring the
appearance of the accused,” “[p]rotecting against the intimidation of
witnesses,” and “[p]rotecting the safety of the victim, any other person or
the community.” Ariz. Const. art. 2, § 22(B); A.R.S. § 13-3961, historical
note.
¶5 In Simpson v. Miller (Simpson II), 241 Ariz. 341, 349 ¶ 31 (2017),
cert. denied, Arizona v. Martinez, 138 S. Ct. 146 (2017), this Court held article 2,
section 22(A)(1), and § 13-3961(A)(3) facially unconstitutional as they
related to charges of sexual conduct with a minor under fifteen years of age.
After Simpson II the superior court required individualized bail
determinations pursuant to § 13-3961(D) for all persons charged with
Proposition 103 offenses. Section 13-3961(D) provides, in relevant part:
[A] person who is in custody shall not be admitted to bail if
the person is charged with a felony offense and the state
certifies by motion and the court finds after a hearing on the
matter that there is clear and convincing evidence that the
person charged poses a substantial danger to another person
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
or the community or engaged in conduct constituting a
violent offense, 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 and
that the proof is evident or the presumption great that the
person committed the offense.
¶6 In 2017, the State charged Guy Goodman with sexually
assaulting a victim in 2010. “A person commits sexual assault by
intentionally or knowingly engaging in sexual intercourse or oral sexual
contact with any person without consent of such person.”
A.R.S. § 13-1406(A). The state can charge a person with sexual assault at
any time as no statute of limitations applies to the offense. See A.R.S.
§ 13-107(A).
¶7 Over the State’s objection that sexual assault remains a non-
bailable offense after Simpson II, the superior court conducted a
§ 13-3961(D) bail hearing. A police officer testified that the victim claimed
that Goodman, a guest in the victim’s home after a night of socializing,
touched her vaginal area beneath her underwear while she was sleeping
and without her consent. DNA tested from an external vaginal swab
confirmed this contact. The officer also said that Goodman, when
confronted with the DNA results, admitted digital penetration. The court
ruled that although there was proof evident or a presumption great that
Goodman committed the offense, the State had failed to “meet its burden
of clear and convincing evidence to show that [Goodman] poses a
substantial danger to other persons or the community.” (The State did not
assert that Goodman committed a “violent offense,” which is defined as
either a dangerous crime against children or terrorism. A.R.S.
§ 13-3961(D).) The court reasoned that “[t]here was no evidence of any
recent felony criminal history or prior similar offenses or arrests nor any
evidence of criminal offenses between the time of this alleged offense in
2010 and today,” nor any history of contact, threats, or intimidation aimed
at the victim or any witnesses. The court set bail at $70,000, required that
Goodman’s movements be electronically monitored upon release, and
imposed other conditions, including that he not possess any weapons, use
non-prescription drugs, or contact the victim.
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
¶8 On special action review, the court of appeals vacated the bail
order, holding that “[s]exual assault remains a non-bailable offense” after
Simpson II, and so a § 13-3961(D) hearing is not required. State v. Wein,
242 Ariz. 352, 353 ¶ 1 (App. 2017).
¶9 We granted review to determine whether the categorical
denial of bail for persons charged with sexual assault, when the proof is
evident or the presumption great as to the charge, violates due process, an
issue of statewide importance. Although Goodman pleaded guilty and was
sentenced while this matter was pending, we nevertheless decide the issue
because it is capable of repetition yet could evade review due to the
temporary duration of pretrial detention. See State v. Valenzuela, 144 Ariz.
43, 44 (1985). We have jurisdiction pursuant to article 6, section 5(3), of the
Arizona Constitution and A.R.S. § 12-120.24.
DISCUSSION
I. Restrictions on pretrial detention: the Salerno standards
¶10 The constitutional validity of Proposition 103’s prohibition on
bail for defendants accused of sexual assault is an issue of law we review
de novo. See Simpson II, 241 Ariz. at 344 ¶ 7. As the challenging party,
Goodman bears the “heavy burden” of demonstrating that the restriction is
facially unconstitutional. United States v. Salerno, 481 U.S. 739, 745 (1987).
¶11 The Due Process Clause prohibits the government from
punishing an accused by jailing him before trial. See id. at 746. But if pretrial
detention is regulatory rather than punitive, the government’s interest can,
in appropriate and exceptional circumstances, outweigh an individual’s
“strong interest in liberty,” an important, fundamental right. Id. at 748, 750;
see also id. at 755 (“In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.”).
¶12 In Salerno, the United States Supreme Court used a two-step
standard to determine whether the Bail Reform Act’s provisions permitting
pretrial detention constituted impermissible punishment or potentially
permissible regulation. Id. at 747. “Unless Congress expressly intended to
impose punitive restrictions, the punitive/regulatory distinction turns on
[1] whether an alternative purpose to which the restriction may rationally
be connected is assignable for it, and [2] whether it appears excessive in
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
relation to the alternative purpose assigned to it.” Id. (internal quotation
marks and alterations omitted) (quoting Schall v. Martin, 467 U.S. 253, 269
(1984)). The Court concluded that the Act was regulatory. Id. at 748; cf.
Simpson II, 241 Ariz. at 347 ¶ 20 (applying the Salerno standard).
¶13 The Salerno Court next used a two-step “heightened scrutiny”
standard to determine whether the Bail Reform Act, although regulatory,
nevertheless violated the due-process restriction on pretrial detention.
Salerno, 481 U.S. at 748–50; Simpson II, 241 Ariz. at 348 ¶ 23. Under that
standard, pretrial detention is constitutionally permissible if the
government has both a “legitimate and compelling” purpose for restricting
an accused’s liberty, and the restriction is “narrowly focuse[d] on a
particularly acute problem.” Salerno, 481 U.S. at 749–50, 752. The Court
determined that the Act met this standard. Id. at 750–51; cf. Simpson II,
241 Ariz. at 345, 348 ¶¶ 9, 23 (applying the second Salerno standard to
conclude that the categorical prohibition of bail for arrestees charged with
sexual conduct with a minor under age fifteen violates due process).
¶14 Consistent with Salerno and Simpson II, we first examine
whether Proposition 103’s categorical prohibition on bail for arrestees
charged with sexual assault is regulatory or punitive. If the latter, the
prohibition constitutes a per se due-process violation. See Simpson II,
241 Ariz. at 347 ¶ 20. If the restriction is regulatory, we must determine
whether it nevertheless violates due process. Finally, we decide whether
any due-process violation renders the restriction facially unconstitutional.
II. Application here
A. Regulation vs. punishment
¶15 In Simpson II, we concluded that Proposition 103’s categorical
prohibition of bail for an arrestee charged with sexual conduct with a minor
under age fifteen, when the proof is evident or presumption great that the
person committed the offense, is regulatory rather than punitive. Id. For
the same reasons, Proposition 103’s identical prohibition on bail for persons
charged with sexual assault is regulatory.
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
B. Due process
1. Legitimate and compelling purpose
¶16 The publicity pamphlet for Proposition 103 reflects that the
measure’s purpose was both to ensure that sexual predators facing
potential life sentences would be present for trial and to keep “rapists and
child molesters” from endangering others while awaiting trial. The senator
who sponsored the legislation placing Proposition 103 on the ballot
explained to voters that “sexual predators . . . know they could be facing
lifetime incarceration” and therefore “ha[ve] no incentive to ever return” to
court, making Proposition 103 necessary to “keep dangerous sexual
predators off our streets.” See Ariz. Sec’y of State, 2002 Publicity Pamphlet
16 (2002), http://apps.azsos.gov/election/2002/Info/pubpamphlet/
english/prop103.pdf (“Publicity Pamphlet”). Others echoed the senator,
focusing on the need to “prevent the worst sexual predators from jumping
bail or even simply walking our neighborhoods,” stopping “rapists and
child molesters” from reoffending, and treating “bail for rapists and child
molesters . . . like bail for murderers.” Id. at 16–17.
¶17 Ensuring that an accused is present for trial serves a
legitimate and compelling purpose. Cf. Salerno, 481 U.S. at 749 (“[A]n
arrestee may be incarcerated until trial if he presents a risk of flight.”). And
the government has an equally compelling interest in protecting victims
and the public from those who would commit sexual assault while on pre-
trial release. See id. at 747 (“There is no doubt that preventing danger to the
community is a legitimate regulatory goal.”); Simpson II, 241 Ariz. at
348 ¶ 24 (finding that Proposition 103’s prohibition on bail for persons
accused of sexual contact with a minor under fifteen years of age serves the
legitimate and compelling purpose of crime prevention).
¶18 Goodman takes issue with our analysis in Simpson II and
argues that Proposition 103 did not advance a legitimate and compelling
government purpose because voters were misled by suggestions that,
without the categorical prohibition, courts would have to grant bail to
persons charged with Proposition 103 offenses. We disagree. The Publicity
Pamphlet stated that without the measure, persons charged with
Proposition 103 offenses would be “eligible for bail,” not automatically
granted bail. Publicity Pamphlet, supra ¶ 16 at 16.
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
¶19 The prohibition on bail for those charged with sexual assault
serves legitimate and compelling regulatory purposes and thus satisfies the
first prong of the Salerno standard.
2. Narrowly focused measure
¶20 Proposition 103’s categorical prohibition of bail for persons
charged with sexual assault is “narrowly focused” if the proof is evident or
the presumption great regarding the charge, and a sexual assault charge
either presents an inherent flight risk or inherently demonstrates that the
accused will likely commit a new dangerous crime while awaiting trial even
with release conditions. Simpson II, 241 Ariz. at 348–49 ¶¶ 26, 30.
a. Flight risk
¶21 A sexual assault charge does not present an inherent flight
risk. “Sexual assault” concerns an array of deviant behaviors and,
depending on individual circumstances, punishment ranges from 5.25
years’ imprisonment to life imprisonment. A.R.S. § 13-1406(B)–(D). The
State does not cite any authority, and we are not aware of any, suggesting
that the prospect of imprisonment for a non-capital offense inherently
predicts that an accused will not appear for trial. Cf. Simpson II, 241 Ariz.
at 349 ¶ 26 (“Historically, capital offense charges have been considered to
present an inherent flight risk sufficient to justify bail denial.”). And even
if the possibility of a life sentence presents an inherent flight risk, a concern
expressed in the Publicity Pamphlet, supra ¶ 16, the prohibition is excessive
as it sweeps in those arrestees facing only a term of years’ imprisonment if
convicted.
b. Future dangerousness while awaiting trial
¶22 To begin, the question here is not whether sexual assault is a
deplorable crime that endangers and dehumanizes victims — it is, and it
does. Cf. Coker v. Georgia, 433 U.S. 584, 597 (1977) (describing rape as
“highly reprehensible” and “the ultimate violation of self” after homicide).
The pertinent inquiry is whether a sexual-assault charge alone, when the
proof is evident or the presumption great as to the charge, inherently
demonstrates that the accused will pose an unmanageable risk of danger if
released pending trial. See Simpson II, 241 Ariz. at 349 ¶ 30; cf. Kansas v.
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
Hendricks, 521 U.S. 346, 358 (1997) (stating in the civil commitment context
that “[a] finding of dangerousness, standing alone, is ordinarily not a
sufficient ground” to justify commitment and that some additional factor is
required to narrow the class to persons “who are unable to control their
dangerousness”). For three reasons, we agree with Goodman that it does
not.
¶23 First, Proposition 103 does not provide any procedures to
determine whether a person charged with sexual assault would pose a
danger if granted pre-trial release. Cf. Foucha v. Louisiana, 504 U.S. 71, 81–82
(1992) (invalidating Louisiana’s continued detention of insanity acquittees
who are no longer mentally ill because, “[u]nlike the sharply focused
scheme” in Salerno, which involved individualized assessment, Louisiana’s
scheme does not include “an adversary hearing at which the State must
prove . . . that [the acquittee] is demonstrably dangerous to the
community”); Salerno, 481 U.S. at 742–43, 747, 750 (finding that the Bail
Reform Act was narrowly focused on preventing danger to the community
because, in part, a court could only order pre-trial detention after
conducting a “full-blown adversary hearing” and finding that no
conditions would “assure . . . the safety of any other person and the
community”). A court’s finding that the proof is evident or the
presumption great only shows a likelihood that an accused committed the
charged sexual assault. See Simpson II, 241 Ariz. at 346 ¶ 16 (describing the
standard as requiring substantial proof that the accused committed the
charged crime). It does not address the likelihood that an accused would
commit a new sexual assault or other dangerous crime if released pending
trial. Cf. United States v. Scott, 450 F.3d 863, 874 (9th Cir. 2006) (“Neither
Salerno nor any other case authorizes detaining someone in jail while
awaiting trial, or the imposition of special bail conditions, based merely on
the fact of arrest for a particular crime.”).
¶24 Second, nothing shows that most persons charged with sexual
assault, or even a significant number, would likely commit another sexual
assault or otherwise dangerous crime pending trial if released on bail. Cf.
Simpson II, 241 Ariz. at 348–49 ¶¶ 26, 30 (stating that any category of crime
must serve as “a convincing proxy” for future dangerousness (citation and
internal quotation marks omitted)). Indeed, this showing would be a
difficult undertaking. Cf. Schall, 467 U.S. at 279 (“We have also recognized
that a prediction of future criminal conduct is an experienced prediction
9
STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
based on a host of variables which cannot be readily codified.”) (internal
quotation marks omitted).
¶25 The State points to recidivism rates among sex offenders as
evidence of the likelihood that sexual assault arrestees would commit a new
sexual assault pending trial if released on bail. The cited empirical studies
are not illuminating, however, as they concern a wide variety of sex crimes
besides sexual assault, arrive at disparate conclusions, and for the most part
do not focus on the relatively short time period between arrest and trial.
Regardless, none of the studies cited reflects that most convicted rapists re-
offend, the highest number being 5.6% reoffending within five years of
release from prison. See Matthew R. Durose et al., Recidivism of Prisoners
Released in 30 States in 2005: Patterns from 2005 to 2010, at 2 (U.S. Dep’t of
Justice 2016), https://www.bjs.gov/content/pub/pdf/rprts05p0510_st.pdf.
And the only cited study concerning accused rapists released on bail
reflects that 3% committed another unspecified felony pending trial. See
Brian A. Reaves, Felony Defendants in Large Urban Counties, 2009 — Statistical
Tables 21 (U.S. Dep’t of Justice 2013), https://www.bjs.gov/content/pub/
pdf/fdluc09.pdf.
¶26 Smith v. Doe, 538 U.S. 84 (2003), and McKune v. Lile, 536 U.S.
24 (2002), relied on by Justice Bolick in his dissent, do not persuade us that
recidivism rates justify a categorical denial of bail. See infra ¶ 45. At issue
in Smith was whether Alaska’s registration requirement for convicted sex
offenders imposed punishment so that any retroactive application would
violate the Ex Post Facto Clause. Smith, 538 U.S. at 89. Employing a test
like the one used in Salerno to determine whether an act is regulatory or
punitive, the Court concluded that the registration requirement was
regulatory. Id. at 105–06. In rejecting an argument that application of the
registration requirement to all convicted sex offenders without regard to
their future dangerousness was excessive in relation to a proper regulatory
purpose, the Court noted that a sex-offense conviction could provide
evidence of a “substantial risk of recidivism,” and that Alaska could
“legislate with respect to convicted sex offenders as a class, rather than
require individual determination of their dangerousness.” Id. at 103–04.
¶27 But Smith did not establish that a state can regulate sex
offenders as a class in every situation without violating due process, as
Justice Bolick asserts. See infra ¶¶ 45–47. Indeed, the Court suggested the
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STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
opposite by distinguishing Alaska’s sex-offender-registration requirement
from a Kansas act that authorized civil commitment of sexually violent
predators for a maximum of one year, subject to new commitment
proceedings. 538 U.S. at 104 (citing Hendricks, 521 U.S. at 364). In Hendricks,
the Court rejected a due-process challenge to the Kansas act, reasoning that
because it required an individualized finding of future dangerousness
linked with a “mental abnormality” or “personality disorder,” it
sufficiently “narrow[ed] the class of persons eligible for confinement to
those who are unable to control their dangerousness.” 521 U.S. at 358.
(Contrary to Justice Bolick’s characterization, the Hendricks Court’s due-
process analysis did not turn on the potential that sexually violent
predators could be indefinitely confined. See infra ¶ 48.) The Smith Court
concluded that a similarly individualized risk assessment was not
necessary to uphold Alaska’s law as regulatory, noting that “[t]he State’s
objective in Hendricks was involuntary (and potentially indefinite)
confinement of particularly dangerous individuals,” which made
individual assessments appropriate given “[t]he magnitude of the
restraint.” Smith, 538 U.S. at 104. The Court contrasted sex-offender
registration as a “more minor condition” and concluded that in that context
“the State can dispense with individual predictions of future
dangerousness and allow the public to assess the risk on the basis of
accurate, nonprivate information about the registrants’ convictions.” Id.
Pretrial detention is more like civil commitment than sex-offender
registration, making this case closer to Hendricks. And Smith does not
support a conclusion that the risk of recidivism by some persons on pretrial
release justifies categorically dispensing with individual assessments of
that risk.
¶28 McKune addressed whether requiring convicted sex offenders
to admit their crimes as part of an in-prison rehabilitation program violated
the Fifth Amendment privilege against self-incrimination. 536 U.S. at 29.
The Court began its analysis by noting that “[s]ex offenders are a serious
threat in this Nation” and “[w]hen convicted sex offenders reenter society,
they are much more likely than any other type of offender to be rearrested
for a new rape or sexual assault.” Id. at 33. The empirical study relied on
by the Court for this conclusion, however, reflects that 7.7% of convicted
rapists released from prison in 1983 were rearrested for rape within three
years. See U.S. Dep’t of Justice, Bureau of Justice Statistics, Recidivism of
Prisoners Released in 1983, at 6 (1997), https://www.bjs.gov/content/pub/
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Opinion of the Court
pdf/rpr83.pdf. Although we share the McKune Court’s view that sex
offenders are a “serious threat,” the post-conviction recidivism rates do not
inherently demonstrate that a person charged with sexual assault will likely
commit another sexual assault if released pending trial, particularly if
conditions like GPS monitoring are imposed.
¶29 Third, alternatives exist “that would serve the state’s objective
equally well at less cost to individual liberty.” Simpson II, 241 Ariz. at 349
¶ 28. The Arizona Constitution already forbids bail for those charged with
any felony when the proof is evident or the presumption great as to the
charge, “the person charged poses a substantial danger to any other person
or the community,” and “no conditions of release which may be imposed
will reasonably assure the safety of the other person or the community.”
Ariz. Const. art. 2, § 22(A)(3); see also A.R.S. § 13-3961(D) (codifying art. 2,
§ 22(A)(3)). Also, a court can set bail and impose restrictions intended to
preserve public safety, like the GPS monitoring imposed on Goodman. See
Ariz. Const. art. 2, § 22(B)(3) (“The purposes of bail and any conditions of
release that are set by a judicial officer include . . . [p]rotecting the safety of
the victim, any other person or the community.”).
¶30 The court of appeals reached a different conclusion from ours
by mistakenly focusing on the dangerousness of sexual assault and not on
whether a charge inherently predicts the commission of a new sexual
assault or otherwise dangerous offense pending trial. Wein, 242 Ariz. at 355
¶ 5; see also Hendricks, 521 U.S. at 358; Simpson II, 241 Ariz. at 349 ¶ 30. The
court seized on a citation signal to interpret Simpson II as turning on the fact
that sexual conduct with a minor under fifteen years of age could be
committed with a victim’s consent and therefore “may involve a defendant
who is not a danger to the community.” Wein, 242 Ariz. at 353 ¶¶ 7–8. The
court reasoned that after Simpson II, a charge of sexual assault, which is
always non-consensual, “fulfills the requirement for finding inherent
dangerousness.” Id. ¶ 9. Justice Bolick shares this view. See infra ¶ 42.
¶31 In retrospect, the court of appeals’ confusion is
understandable. We should have immediately explained that just as
commission of sexual conduct with a minor under fifteen years of age is not
always dangerous, it does not inherently demonstrate future
dangerousness pending trial. See Simpson II, 241 Ariz. at 349 ¶ 27. We made
that point later in the opinion. See id. ¶ 30 (“[T]he state may deny bail
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Opinion of the Court
categorically for crimes that inherently demonstrate future dangerousness”
when the proof is evident or the presumption great, but “[w]hat it may not
do, consistent with due process, is deny bail categorically for those accused
of crimes that do not inherently predict future dangerousness.”); see also
Morreno v. Hon. Brickner/State, 790 Ariz. Adv. Rep. 24 ¶ 21 (May 2, 2018)
(“The mere charge itself [in Simpson II] was not a convincing proxy for
future dangerousness, and therefore not narrowly focused, because it swept
in situations that are not predictive of future dangerousness.”).
Justice Bolick’s view that showing proof evident or presumption great that
an accused committed sexual assault alone demonstrates future
dangerousness is at odds with Simpson II’s holding and also disregards key
aspects of Salerno’s reasoning and holding. See infra ¶ 50; see also Morreno,
790 Ariz. Adv. Rep. 24 ¶ 21.
¶32 Contrary to the dissent’s assertion, infra ¶ 46, we reaffirm our
view expressed in Simpson II that due process does not require
individualized determinations in every case. 241 Ariz. at 348 ¶ 26. Indeed,
we recently rejected a due-process challenge to article 2, section 22(A)(2), of
the Arizona Constitution, which precludes bail “[f]or felony offenses
committed when the person charged is already admitted to bail on a
separate felony charge and where the proof is evident or the presumption
great as to the present charge.” Morreno, 790 Ariz. Adv. Rep. 24 ¶ 38. We
concluded that the state had a legitimate and compelling interest in
“preventing defendants from committing new felonies while on pretrial
release from a prior felony charge,” and article 2, section 22(A)(2), narrowly
focused on this objective by applying only to defendants who, in fact, likely
reoffended while on release. Id. ¶¶ 31, 34 (citation and internal quotation
marks omitted). “In such cases, an individualized determination serves no
narrowing function and is therefore unnecessary.” Id. ¶ 34. But unlike
Morreno, the issue here is whether a sexual assault charge inherently
predicts that a defendant will commit another dangerous offense pending
trial. Due process requires an individualized assessment of this risk
because it is not categorically demonstrated, as is the risk presented by a
felon who has already reoffended while on pretrial release.
¶33 In sum, although Proposition 103 has legitimate and
compelling regulatory purposes, its categorical prohibition of bail for
persons charged with sexual assault, when the proof is evident or the
presumption great as to the charge, is not narrowly focused on
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Opinion of the Court
accomplishing those purposes. The Salerno standard is unmet, meaning the
categorical prohibition of bail violates substantive due process. See
Simpson II, 241 Ariz. at 349 ¶ 30.
III. Facial unconstitutionality
¶34 The Arizona Attorney General, in an amicus role, and
Justice Gould, in his dissent, argue that even if Proposition 103’s categorical
prohibition on bail for those charged with sexual assault violates
Goodman’s substantive-due-process rights, he failed to establish that the
prohibition is facially unconstitutional. To succeed on a facial challenge, an
admittedly difficult feat, “the challenger must establish that no set of
circumstances exists under which the Act would be valid. The fact that the
[Act] might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.” Salerno, 481 U.S.
at 745.
¶35 Here, Proposition 103’s categorical prohibition of bail for
everyone charged with sexual assault deprives arrestees of their
substantive-due-process right to either an individualized determination of
future dangerousness or a valid proxy for it. See Morreno, 790 Ariz. Adv.
Rep. 24 ¶ 15. There is “no set of circumstances” under which the
prohibition would be valid because it lacks either of these features in every
application.
¶36 Echoing his partial dissent in Morreno, Justice Gould asserts
that (1) the prohibition here is not facially unconstitutional because it
applies to arrestees who would, in fact, likely commit a new sexual assault
while on pretrial release, and (2) we apply an overbreadth analysis that is
properly confined to First Amendment cases. See id. ¶¶42, 49 (Gould, J.
concurring); infra ¶¶ 54, 56. We reject these arguments for the same reasons
we did in Morreno. See Morreno, 790 Ariz. Adv. Rep. 24 ¶¶ 20–23.
CONCLUSION
¶37 As in Simpson II, we do not lightly set aside citizen-enacted
constitutional provisions, whether they are narrowly passed or approved
“overwhelming[ly]” by Arizona’s voters (an irrelevancy for
constitutionality purposes). Infra ¶ 39. Nevertheless, article 2, section
14
STATE V. HON. WEIN (GOODMAN)
Opinion of the Court
22(A)(1), and § 13-3961(A)(2) are facially unconstitutional because they
categorically prohibit bail without regard for individual circumstances. To
be clear, courts can deny bail to a person charged with sexual assault when
the proof is evident or the presumption great as to the charge and must do
so when that person “poses a substantial danger to another person or the
community.” A.R.S. § 13-3961(D). Before doing so, however, courts must
engage in an individualized determination by conducting a § 13-3961(D)
hearing. We affirm the superior court and vacate the court of appeals’
opinion.
15
STATE V. HON. WEIN (GOODMAN)
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ,
Dissenting
BOLICK, J., joined by GOULD, J., and LOPEZ, J., dissenting.
¶38 Although our colleagues’ opinion has substantial merit, we
conclude that the differences between the crime of sexual assault at issue
here and the crime of sexual conduct with a minor at issue in Simpson II are
of constitutional magnitude, justifying Arizona citizens’ determination that
those who are likely to be adjudged guilty of sexual assault should be held
without bail pending trial.
¶39 We begin by recognizing, as did the Court in Simpson II, that
the challenged provision is part of our state’s organic law, whose review
against federal constitutional challenges we undertake with “great care”
and whose provisions “we strive whenever possible to uphold.” 241 Ariz.
at 345 ¶ 8. In a close case, we should not expansively construe United States
Supreme Court precedents to compel ourselves to invalidate a provision of
our constitution; we should seek to the fullest extent possible to harmonize
the two. We conclude that no such irreconcilable conflict exists here and
that the majority too lightly sets aside the voters’ overwhelming
determination that those who are shown to be likely guilty of sexual assault
should not be released pending trial. The framework set forth by the United
States Supreme Court in Salerno, while recognizing core liberty interests
implicated by pretrial incarceration, emphasized that it has “repeatedly
held that the Government’s regulatory interest in community safety can, in
appropriate circumstances, outweigh an individual’s liberty interest.” 481
U.S. at 748. This is one of those appropriate circumstances.
¶40 In Simpson II, we held that individual determinations of
future dangerousness are not necessary in all cases, but that where pretrial
incarceration is categorically required, the crime giving rise to such
conditions must serve as a “convincing proxy for unmanageable flight risk
or dangerousness.” 241 Ariz. at 348 ¶ 26 (quoting Lopez-Valenzuela v. Arpaio,
770 F.3d 772, 786 (9th Cir. 2014)). The Court’s determination that sexual
conduct with a minor was not an adequate proxy for dangerousness was
based on the crime’s definition, which encompassed consensual activity so
that dangerousness was not “inherent” in the crime. Id. at 349 ¶¶ 26–27
(“The crime can be committed by a person of any age, and may be
consensual,” thereby “sweep[ing] in situations where teenagers engage in
consensual sex. In such instances, evident proof or presumption great that
the defendant committed the crime would suggest little or nothing about
16
STATE V. HON. WEIN (GOODMAN)
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ,
Dissenting
the defendant’s danger to anyone.”). The Court’s analysis made clear that
where a crime is not a convincing proxy for dangerousness, an individual
assessment of dangerousness is necessary to deny pretrial release. But
where a crime is a convincing proxy for dangerousness, a determination by
proof evident or presumption great that a defendant committed the crime
is sufficient to establish dangerousness and to sustain a categorical
prohibition of bail.
¶41 Sexual assault is by definition an extremely dangerous crime.
As this Court highlighted in Simpson II, absence of consent is a defining
feature of sexual assault. Id. ¶ 27 (citing A.R.S. § 13-1406(A) defining sexual
assault as “intentionally or knowingly engaging in sexual intercourse or
oral sexual contact . . . without consent of such person”). Our statutes
carefully define and circumscribe the term “without consent,” which can
occur in four discrete circumstances: where the victim (a) “is coerced by the
immediate use or threatened use of force against a person or property”;
(b) “is incapable of consent by reason of mental disorder, mental defect,
drugs, alcohol, sleep[,] or any other similar impairment of cognition and
such condition is known or should reasonably have been known to the
defendant”; (c) “is intentionally deceived as to the nature of the act”; or
(d) “is intentionally deceived to erroneously believe that the person is the
victim’s spouse.” A.R.S. § 13-1401(A)(7). Thus, by definition, sexual assault
necessarily involves the sexual violation of a person through force,
coercion, or deception. As such, it is an inherently dangerous crime, and
proof evident or presumption great that a defendant has committed the
crime demonstrates that the defendant is dangerous.
¶42 As noted in Simpson II, the crime at issue there was defined to
encompass both consensual and nonconsensual acts. 241 Ariz. at 349 ¶ 27.
Here the crime is defined only to encompass nonconsensual sexual
violations. The Court highlighted that distinction because the risk of future
dangerousness encompasses not only the likelihood of recidivism but the
inherent danger and human impact of the crime. The majority now
“explain[s]” that the nature of the crime is irrelevant to the risk of future
dangerousness. Supra ¶ 31. In that way, it removes from the constitutional
equation that sexual assault is by definition a uniquely horrific act, in which
a person’s most intimate parts are violated through force, coercion, or
deception.
17
STATE V. HON. WEIN (GOODMAN)
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ,
Dissenting
¶43 As the United States Supreme Court recognized in Coker v.
Georgia, sexual assault
is highly reprehensible, both in a moral sense and in its almost
total contempt for the personal integrity and autonomy of the
female victim and for the latter’s privilege of choosing those
with whom intimate relationships are to be established. Short
of homicide, it is the “ultimate violation of self.” It is also a violent
crime because it normally involves force, or the threat of force
or intimidation, to overcome the will and the capacity of the
victim to resist. Rape is very often accompanied by physical
injury to the female and can also inflict mental and
psychological damage. Because it undermines the
community’s sense of security, there is public injury as well.
433 U.S. 584, 597–98 (1977) (emphasis added) (quoting Lisa Brodyaga et al.,
U.S. Dep’t of Justice, Rape and Its Victims: A Report for Citizens Health
Facilities, and Criminal Justice Agencies (1975)).
¶44 Unsurprisingly, then, the Supreme Court has recognized that
sexual crimes justify distinctive legislative treatment in the confinement
context.
¶45 In Smith v. Doe, 538 U.S. 84 (2003), the Court upheld a state’s
sex-offender registry against an Ex Post Facto Clause challenge. Although
a distinct provision of the Constitution, the Ex Post Facto Clause is closely
related to substantive due process because it likewise “forbids the
application of any new punitive measure to a crime already consummated.”
Kansas v. Hendricks, 521 U.S. 346, 370 (1997) (quoting Lindsey v. Washington,
301 U.S. 397, 401 (1937)). In Smith, the challengers argued the law was
excessive in relation to its regulatory purpose because it “applies to all
convicted sex offenders without regard to their future dangerousness,”
538 U.S. at 103, which parallels Goodman‘s argument here. The Court held
that the state reasonably “could conclude that a conviction for a sex offense
provides evidence of substantial risk of recidivism.” Id. Specifically, the
Court cited findings justifying “grave concerns over the high rate of
recidivism among convicted sex offenders and their dangerousness as a class.”
Id. (emphasis added); see also McKune v. Lile, 536 U.S. 24, 32–33 (2002) (“Sex
offenders are a serious threat in this Nation. . . . When convicted sex
18
STATE V. HON. WEIN (GOODMAN)
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ,
Dissenting
offenders reenter society, they are much more likely than any other type of
offender to be rearrested for a new rape or sexual assault. . . . [T]he rate of
recidivism of untreated offenders has been estimated to be as high as
80%.”).
¶46 The majority acknowledges that sex offenders constitute a
serious threat but is unconvinced that recidivism statistics “inherently
demonstrate that a person charged with sexual assault will likely commit
another sexual assault if released pending trial.” Supra ¶ 28. That
conclusion misstates the constitutional requirement and implies the
necessity of individualized assessments in every case, which we expressly
rejected in Simpson II. 241 Ariz. at 348 ¶ 26 (“[W]e do not read Salerno or
other decisions to require such individualized determinations in every
case,” but rather to require that its procedure serve as a convincing proxy
for dangerousness.); accord State v. Furgal, 13 A.3d 272, 278–79 (N.H. 2010),
cited with approval in Simpson II, 241 Ariz. at 349 ¶ 26. Rather, the
Constitution requires only that the state reasonably could conclude that the
risk of dangerousness requires pretrial confinement of those who are
determined to have likely committed sexual assault. See, e.g., Smith,
538 U.S. at 103 (“The Ex Post Facto Clause does not preclude a State from
making reasonable categorical judgments that conviction of specified
crimes should entail particular regulatory consequences.”); see also id. at 104
(“The State’s determination to legislate with respect to convicted sex
offenders as a class, rather than require individual determination of their
dangerousness,” did not violate the clause.).
¶47 Smith and related cases establish that a state may categorically
regulate sex offenders as a class for public safety purposes, both because of
the uniquely horrific nature of the crimes and sex offenders’ propensity for
recidivism. Indeed, while the statute in Smith exposed all sex offenders to
special burdens, the provision here deals only with a particularly heinous
and dangerous subcategory of sex offenders. Nor does it amount to a
substantial difference that Smith involved convicted sex offenders, given
that the bail exclusion here applies only to defendants who are
demonstrated at an adversarial hearing to have committed sexual assault
by proof evident or presumption great. As we noted in Simpson II, the
procedure to determine proof evident or presumption great is “robust,”
requiring a prompt and complete adversarial hearing with specific factual
19
STATE V. HON. WEIN (GOODMAN)
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ,
Dissenting
findings in which “the state’s burden ‘is met if all of the evidence, fully
considered by the court, makes it plain and clear to the understanding . . .
[and] dispassionate judgment of the court that the accused committed’” the
crime. 241 Ariz. at 346 ¶ 16 (alteration in original) (quoting Simpson v.
Owens, 207 Ariz. 261, 274 ¶ 40 (App. 2004)).
¶48 The majority notes that Smith distinguished the earlier
opinion in Hendricks, supra ¶ 27, which upheld a statute requiring an
individualized assessment of dangerousness for involuntary civil
commitment for sexual offenders who were likely to recidivate due to
mental abnormalities or personality disorders. Hendricks, 521 U.S. at 350–
52. The scheme at issue differed from the prohibition of bail here in two
crucial respects. First, it involved involuntary civil commitment after, and
in addition to, the criminal sentence. Id. at 351–52. Further, the period of
involuntary commitment was potentially indefinite. Id. at 364; see also
Foucha, 504 U.S. at 83 (striking down “indefinite detention of insanity
acquittees” in the absence of sufficient safeguards). As the Court observed
in Smith, the “magnitude of the restraint made individual assessment
appropriate.” 538 U.S. at 104.
¶49 In contrast to Hendricks, which exposed sex offenders to
potentially indefinite involuntary commitment after having fully served
their sentences, the bail prohibition here applies only to defendants who by
proof evident and presumption great are likely to have committed sexual
assault and whose pretrial confinement will be only temporary. It thus
provides greater protection than the baseline requirement of a probable
cause finding for pretrial confinement upheld by the Supreme Court in
Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Additionally, the Arizona
Constitution, statutes, and rules guarantee a speedy trial. See Ariz. Const.
art. 2, § 24 (guaranteeing the right of criminal defendants to speedy trial);
A.R.S. § 13-114(1) (same); see also Ariz. Const. art 2, § 2.1(A)(10)
(guaranteeing the right of crime victims to speedy trial); A.R.S. § 13-4435(A)
(same); A.R.S. § 13-4435(D) (limiting continuances to “extraordinary
circumstances” and when “indispensable to the interests of justice”). The
Arizona Rules of Criminal Procedure prescribe time for trials, including
150 days after arraignment for defendants in custody. Ariz. R. Crim. P.
8.2(a)(1). Rule 8.6 provides that the court must dismiss any prosecution
when it determines that the applicable time limits are violated. Those
20
STATE V. HON. WEIN (GOODMAN)
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ,
Dissenting
protections ensure that defendants adjudged by proof evident or
presumption great to have committed sexual assault will be subjected only
to the pretrial detention necessary to protect the public against dangerous
criminal acts.
¶50 For all of those reasons, we conclude that the bail-exclusion
provision here fits comfortably within the Salerno framework. First, the
provision applies to “a specific category of extremely limited offenses.”
Salerno, 481 U.S. at 750. Indeed, it is far more limited than the array of
offenses for which bail was restricted in the law at issue in Salerno. Id. at
747 (citing 18 U.S.C. § 3142(f), which includes crimes of violence, offenses
with a penalty of life imprisonment or death, serious drug offenses, and
certain repeat offenders)). Second, it is narrowly focused on “preventing
danger to the community,” id. at 747, because it is limited to a crime that the
Supreme Court has recognized as particularly dangerous and whose
perpetrators are likely to commit similar crimes in the future, see, e.g., Smith,
538 U.S. at 103–04; supra ¶¶ 45–47. Third, like the “full-blown adversary”
hearing in Salerno, 481 U.S. at 750, pretrial detention in Arizona is preceded
by a hearing requiring not merely probable cause but proof evident or
presumption great. Although the Bail Reform Act at issue in Salerno
included individualized assessments of dangerousness, id., the nature of
the crime here, as discussed above, justifies categorical treatment so that an
adversarial hearing regarding probable guilt serves as an ample proxy for
dangerousness. Fourth, the duration of pretrial detention is limited by
speedy-trial guarantees and rules. See id. at 747. Finally, if any doubt exists
that these safeguards “suffice to repel a facial challenge,” the Court in
Salerno admonishes that the protections sustained there are “more
exacting” and “far exceed what we found necessary to effect limited pretrial
detention” in other cases. See id. at 752.
¶51 Simpson II also suggests that the existence of less-restrictive
alternatives may demonstrate the bail exclusion is not narrowly focused in
some instances. 241 Ariz. at 349 ¶ 28. However, we emphasized that
individualized determinations of dangerousness are unnecessary if the
crime is a convincing proxy for unmanageable flight risk or dangerousness.
Id. at 348–49 ¶ 26 (noting that historically, bail is often denied categorically
to capital defendants due to flight risk). We expressly recognized that
“certain crimes . . . may present such inherent risk of future dangerousness
21
STATE V. HON. WEIN (GOODMAN)
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ,
Dissenting
that bail might appropriately be denied by proof evident or presumption
great that the defendant committed the crime.” Id. at 349 ¶ 26. As discussed
above, the Supreme Court’s decisions in Smith and McKune make clear that
sexual assault is a uniquely grave and dangerous crime. The statutory
definition limiting sexual assault to nonconsensual acts narrowly focuses
the bail exclusion to an especially serious and inherently dangerous crime.
The extensive safeguards further ensure narrow focus and satisfy the
Salerno standards. Indeed, we held recently in Morreno that individualized
dangerousness determinations are unnecessary to categorically deny bail to
felony defendants who are arrested for any new felonies before trial. 790
Ariz. Adv. Rep. 24 ¶¶ 34–35. We therefore conclude that the majority
unnecessarily oversteps by concluding that federal precedent compels it to
invalidate a provision of our constitution.
¶52 If it is presented the opportunity to do so, we urge the
Supreme Court to review this decision. If we are correct that its precedents
allow Arizona to deny pretrial release to those who by proof evident or
presumption great have committed sexual assault, this Court has
unnecessarily invalidated a part of our organic law. As a matter of comity
and federalism, we urge the Supreme Court to correct the error if this Court
has misread its precedents. In the meantime, with great respect to our
colleagues, we dissent.
22
STATE V. HON. WEIN (GOODMAN)
JUSTICE GOULD, joined by JUSTICE LOPEZ,
Dissenting
GOULD, J., joined by LOPEZ, J., dissenting.
¶53 For the reasons set forth in my partial dissent in Morreno v.
Hon. Brickner/State, 790 Ariz. Adv. Rep. 24 ¶¶ 39–71, I also dissent from the
majority’s decision today. Specifically, I conclude the sexual assault bond
restriction contained in article 2, section 22(A)(1), of the Arizona
Constitution (and codified in A.R.S. § 13-3961(A)(2)) is facially
constitutional. Additionally, while I do not join in Justice Bolick’s
dissenting opinion to the extent he applies the overbreadth analysis used in
Simpson II, I do join in his analysis and conclusion that the bond provision
at issue here is facially constitutional.
¶54 As it did in Simpson II, the majority abandons the facial
standard set forth in Salerno, 481 U.S. at 745, substituting the overbreadth
standard used by the Ninth Circuit in Lopez-Valenzuela, 770 F.3d 772. See
Morreno, 790 Ariz. Adv. Rep. 24 ¶¶ 39–45 (discussing Salerno’s standard for
facial challenges and Simpson II’s adoption of the overbreadth standard
used in Lopez-Valenzuela). Thus, applying Simpson II’s overbreadth
standard, this Court strikes down yet another offense–based bond
provision. Now, the only remaining offense–based restriction is for capital
offenses. Undoubtedly, this provision cannot survive the majority’s
overbreadth test. See Morreno, 790 Ariz. Adv. Rep. 24 ¶¶ 64, 67–68, 70
(discussing how offense-based bond restrictions cannot survive the Simpson
II overbreadth standard).
¶55 Here, like Simpson II, the majority contends that to be facially
valid, sexual assault must serve as a “valid proxy” for future dangerousness
and “inherently demonstrate[] that [an] accused will likely commit a new
dangerous crime while awaiting trial.” See supra ¶¶ 20, 35. Thus, if there
are instances where a defendant charged with sexual assault might remain
crime–free on pretrial release, the crime cannot serve as a “valid proxy” for
future dangerousness.
¶56 Not only does the majority’s approach create an impossible
standard for “inherently dangerous” crimes, it essentially turns Salerno on
its head. In contrast to the majority approach, Salerno provides that “[t]he
fact that the [act] might operate unconstitutionally under some conceivable
set of circumstances is insufficient to render it wholly invalid.” Salerno, 481
U.S. at 745. Thus, applying Salerno, the subject provision survives a facial
23
STATE V. HON. WEIN (GOODMAN)
JUSTICE GOULD, joined by JUSTICE LOPEZ,
Dissenting
challenge because there are instances where a defendant who commits
sexual assault poses a danger to the victim or the community. Indeed, as
Justice Bolick notes in his dissent, the United States Supreme Court has
expressly recognized that sex offenders are a “serious threat” to this
“Nation,” and that such offenders pose a risk of recidivism. See supra ¶¶
44-46 (Bolick, J., dissenting). Admittedly, this does not mean that all sex
offenders will reoffend, or that even most will reoffend. But any offender
charged with sexual assault, when the proof of the offense is evident or the
presumption great, inherently presents a risk of danger to society, and the
pronouncements of the United States Supreme Court do show that at least
some sex offenders almost certainly will commit new crimes while on
pretrial release. Under Salerno, this is sufficient to survive a facial challenge.
Supra ¶ 54.
¶57 In abandoning Salerno, the majority has effectively imposed a
due process requirement that all determinations denying pretrial release
must include an individualized determination of future dangerousness.
There is, of course, no authority for this requirement. Indeed, Salerno did
not impose such a requirement. See Morreno, 790 Ariz. Adv. Rep. 24 ¶¶ 59–
62.
¶58 In response, the majority asserts that Morreno upheld a
categorical bond restriction that did not provide an individualized
determination. Supra ¶ 32. While true, Morreno addressed a bond
restriction involving defendants who had already been charged with a
felony and, while on pretrial release, committed another felony. Of course,
preventing defendants from committing new crimes while on pretrial
release is the very objective the voters sought to achieve in passing the
subject bond provision, particularly when a defendant has been charged
with a serious crime such as sexual assault. Supra ¶¶ 4, 16.
¶59 Applying the Salerno standard, I would deny Goodman’s
facial challenge. Following Salerno does not leave Goodman without a
remedy. As I noted in Morreno, he can assert that the sexual assault
provision is unconstitutional as applied to him. 790 Ariz. Adv. Rep. 24 ¶
69. Therefore, I dissent.
24