Sex offenders: To bail or not to bail

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.”

Read the rest of the piece here at reason/The Volokh Conspiracy.

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    • #49187 Reply
      Ed C

      The amicus brief is simply based on erroneous assumptions or interpretations of recidivism rates for sex offenders. How do we counter this? Somehow the ignorance must not be allowed to continue. Specifically:

      (A) the “risk of recidivism posed by sex offenders is ‘frightening and high.’” 538 U.S. 84, 103 (2003)
      Hasn’t the “frightening and high” comment in dicta been examined and found to have been based on a non-peer-reviewed article in Psychology Today?

      (B) When “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.” McKune v. Lile, 536 U.S. 24, 32 (2002)
      Quite likely true, but that is a misinterpretation of the data. I’ve read the data indicate the ratio is about 4:1, i.e. one point something vs. 5.3%. A McKune type claim is probably true for any genre of crime. Car jackers are more likely to jack a car than persons who committed other crimes. Also, the term “sex offender” includes persons who did not commit a rape or sexual assault. The juxtaposition of the terms implies that ALL sex offenders are are likely to commit rape and sexual assault.

      (C) see also United States v. Kebodeaux, 570 U.S. 387, 395–96 (2013) (“recidivism rates among sex offenders are higher than the average for other types of criminals”).
      Huh? I thought sexual recidivism rates were somewhere below 10%. The Kebodeaux decision itself uses the DOJ figure of 5.3%. The overall recidivism rate is around 43%. This comprises sexual recidivism, other types of offenses and technical violations of probation. Some studies show overall recidivism is exacerbated by registration, which increases homelessness and unemployment.

    • #49407 Reply
      Lawrence Rider

      Remember Youngblood, Ms. O’Connor? Yawner? Whole state of Arizona should be ashamed of that one.

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