By David Post . . . In a posting here on the Volokh Conspiracy last week (“Is a Categorical Denial of Bail for Sex Offenders Constitutional?“), Paul Cassell summarized an amicus brief he co-authored urging the US Supreme Court to grant certiorari in Arizona v. Goodman,a case involving a provision of Arizona law under which pre-trial bail must be denied to persons charged with sexual assault where “the proof is evident or the presumption great that the person is guilty.” [The Scotusblog page for the case is here.]
Arizona’s general bail statute provides (as, I believe, do the statutes of all other States) that courts may deny bail to persons charged with a felony, but only after an individualized determination that the defendant “poses a substantial danger to another person or to the community.”*
*The Arizona general bail statute, AZ Rev. Stat. 13-3961, provides that a person charged with a felony offense “may not be admitted to bail” where the court finds, after a pre-trial bail hearing: (a) that there is “clear and convincing evidence that the person charged poses a substantial danger to another person or the community”; (b) 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 (c) that “the proof is evident or the presumption great that the person committed the offense.”
The provision at issue in Goodman replaces this individualized determination with a categorical one: all persons charged with sexual assault are to be denied bail, notwithstanding the constitutionally-mandated presumption of innocence, without the need to produce any evidence showing that they are a danger to the community; they will, in effect, be presumed dangerous (at least, if “the proof is evident or the presumption great that the person committed the offense”).
The Arizona Supreme Court struck this provision down as an unconstitutional deprivation of due process. Due process, the court held, requires an individualized determination of dangerousness unless the crime charged “inherently demonstrates that the accused will pose an unmanageable risk of danger if released pending trial.”