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High court rules bail can’t be denied in all cases involving sex with minor


State constitutional provisions that deny bail to people solely because they’re accused of having sex with a minor violate the U.S. Constitution, the Arizona Supreme Court ruled Thursday.

The justices acknowledged arguments by prosecutors that trial judges have the right to keep certain people behind bars while awaiting trial as a method of protecting the public. And they said that the crime of sexual conduct with a minor is a serious charge.

But Justice Clint Bolick, writing for the unanimous court, said the seriousness of the charge, by itself, is insufficient to result in automatic denial of release. He said prosecutors have to prove that the defendant in question poses a specific threat and that there are no conditions that can be imposed that allow that person’s release while protecting the public.

Thursday’s ruling comes despite arguments by prosecutors that the justices should honor the will of voters who approved state constitutional provisions in 2002 limiting access to bail.

“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,’’ said Deputy Maricopa Attorney David Cole.

The ruling involves Joe P. Martinez, who is facing several charges, including sexual conduct with a minor younger than 15. He has been held without bail since April 2014 based on both the state constitutional provision and a companion law that deny bail in certain kinds of crimes “if the proof is evidence or the presumption great that the person is guilty of the offense charged.’’

Bolick said there are situations where an individual’s right to freedom “can, in appropriate circumstances, outweigh an individual’s liberty interest.’’ He cited a U.S. Supreme Court decision that upheld denial of bail to those who may be a danger to the community.

But Bolick pointed out that federal ruling was based on a finding that “a defendant posed a danger to specific individual or the community at large.’’ By contrast, he said, the Arizona law and constitutional provision looks only at the crime charged and whether it’s likely the person is guilty.

“It does not consider whether the defendant poses a danger to other,’’ Bolick wrote. And that, he said, offends federal constitutional provisions guaranteeing the right of due process.

“The crime charged against Martinez … is not in itself a proxy for dangerousness,’’ he said. In fact, Bolick noted, the charge of having sex with someone younger than 15 is fairly broad.

“The offense sweeps in situations where teenagers engage in consensual sex,’’ Bolick pointed out. “In such instances, evident proof or presumption great that the defendant committed the crime would suggest little or nothing about the defendant’s danger to anyone,’’ the justice said.

He also said the requirement is not narrowly focused on the goal of protecting the public, saying there are “alternatives that would serve the state’s objective equally well as less cost to individual liberty.’’ For example, Bolick said judges can require those awaiting trial to be outfitted with devices that monitor their movements through global positioning systems.

Nothing in Thursday’s ruling means that those charged with similar crimes will automatically be entitled to be released while awaiting trial. Bolick said the only thing that is required is an individualized determination rather than a blanket ban.

“The court may deny bail altogether for defendants for whom such conditions are inadequate, which may well include many or most defendants accused of sexual conduct with a minor under age 15,’’ he wrote.

And Bolick said the state can deny bail categorically for crimes that “inherently demonstrate future dangerousness’’ where proof is evidence that the defendant committed the crime.

“What it may not do, consistent with due process, is deny bail categorically for those accused of crimes that do not inherently predict future dangerousness,’’ he said.

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 voided 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.

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