Simpson v. Hon. Phemonia Miller (Arizona Supreme Court Case No. CR-16-0227-PR, filed Feb. 9, 2017)

In a unanimous opinion, the Arizona Supreme Court struck down the portion of article 2, section 22(A) of the Arizona Constitution and a corresponding statute, A.R.S. § 13-3961(A)(3), that categorically prohibit bail for all persons accused of sexual conduct with a minor under the age of fifteen “when the proof is evident or the presumption great” that the accused committed the crime. Applying “heightened scrutiny” to these laws, the court held they violate the due process clause of the Fourteenth Amendment to the United States Constitution. The court concluded that although these particular bail provisions serve a legitimate and compelling government interest (preventing crime by arrestees), they are not narrowly focused on accomplishing that objective, as is required under United States Supreme Court precedent.

jail-429633_1920The Arizona Supreme Court characterized this case as a clash between “state interests of the highest order” and “the fundamental due process right to be free from bodily restraint.” The court looked to the United States Supreme Court’s decision in United States v. Salerno, 481 U.S. 739 (1987), for guidance. In that case, the Supreme Court upheld the Bail Reform Act of 1984 against a substantive due process challenge. That Act allowed federal courts to deny bail for serious crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, and certain repeat offenders. But the government was first required to demonstrate there was probable cause to believe the defendant committed the crime and prove by clear and convincing evidence in a full-blown adversary hearing that no conditions of release could reasonably assure the safety of individual persons or the community at large. The Supreme Court held these provisions were narrowly focused on accomplishing the government’s legitimate and compelling interest in preventing crimes by arrestees, which was sufficient to pass muster under the due process clause.

Drawing from the analytical framework employed by the U.S. Supreme Court in Salerno, the Arizona Supreme Court held the test for determining the constitutionality of a mandatory pretrial detention law is whether the law is narrowly focused on accomplishing a legitimate and compelling government interest. Applying that test to the constitutional and statutory bail provisions under review, the Arizona Supreme Court held the laws in question satisfied the first part of the test, but not the second. The court found the government’s interest in preventing crimes by arrestees is both legitimate and compelling. But the court concluded the process used to meet that objective–requiring the government to merely show it is highly likely the accused committed the charged crime–was not narrowly focused on accomplishing the objective of preventing future harm. Unlike the Bail Reform Act at issue in Salerno, the Arizona constitutional and statutory provisions under review in this case did not require an individualized determination of dangerousness. Nor did the crime at issue–sexual conduct with a minor under the age of fifteen–present an inherent risk of future dangerousness such that bail might appropriately be denied by merely showing it was highly likely the defendant committed the charged crime. As the court noted, under Arizona law the crime of sexual conduct with a minor under the age of fifteen can be committed by a person of any age and can include situations where teenagers engage in consensual sex. In such situations, the court commented, a high likelihood that the defendant committed the crime suggests little or nothing about the defendant’s future dangerousness to anyone. And there are other laws already available to the state that will meet its objectives equally well at a lower cost to individual liberty than the challenged bail provisions. Those laws include A.R.S. § 13-3961(D), which allows the trial court to deny bail to a defendant charged with a felony at the state’s request if the court finds by clear and convincing evidence, following a hearing, that (1) “the person charged poses a substantial danger to another person or the community,” (2) “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 (3) “the proof is evident or the presumption great that the person committed the offense.”

The court concluded: “Under our reading of Salerno, the state may deny bail categorically for crimes that inherently demonstrate future dangerousness, when the proof is evident or presumption great 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.” Because commission of the crime of sexual conduct with a minor is not inherently predictive of future dangerousness, mandatory pretrial detention of a defendant charged with the crime requires a case-specific inquiry. So the categorical denial of bail for all persons charged with this crime under article 2, section 22(A) of the Arizona Constitution and A.R.S. § 13-3961(A)(3) is unconstitutional on its face. But defendants charged with this crime for whom future dangerousness is proved may still be held without bail under A.R.S. § 13-3961(D) if all of the conditions of that statute are met.

To read the Arizona Supreme Court’s full opinion in this case, click here.