by Lonnie Burton

On February 9, 2017, the Arizona Supreme Court struck down a state constitutional provision which barred bail in certain sex offense cases where the alleged victim was under 15 years of age. The state high court found that section of the Arizona Constitution violated the United States Constitution's Fourteenth Amendment's due process guarantee.

Article 2, section 22(A), of the Arizona Constitution's Declaration of Rights provided in part that all persons charged with a crime shall be bailable ^"except for capital offenses, sexual assault, [and] sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age where the proof is evident or the presumption great." The addition of the bail restrictions in sexual abuse cases where the victim is under age 15 was enacted by the people of the state of Arizona by Proposition 103.

This provision was challenged in the case of Joe Paul Martinez, who the state had charged with multiple sex offenses, including two where the alleged victims were under the age of 15. After Martinez filed a petition to be released on bail, the trial court held an evidentiary hearing, where it determined that the proof of his guilt was evident or presumption great, thus rendering Martinez ineligible for bail under the Art. 2, section 22(A), and corresponding Arizona law A.R.S. § 13-3961(A)(3). Martinez has thus been held in custody without bail since April 2014.

Martinez appealed the trial court's ruling, arguing that Art. 2, section 22(A) violated constitutional standards because an individualized determination of dangerousness is necessary to withhold bail under Simpson v. Miller, 240 Ariz. 208, 215 § 22, 377 P.3d 1003, 1010 (App. 2016). By a 2-1 vote, the Arizona Court of Appeals agreed with Martinez, and struck down the no-bail provision. Thereafter, the state appealed, and the Arizona Supreme Court granted review.

"Where the national and state constitutions conflict irreconcilably, the latter must yield under the Supremacy Clause," the state high court began, in affirming the court of appeals' decision to strike down Art. 2, section 22(A). The court said that the right to bail in non-capital cases is firmly rooted in American and Arizona law. While bail may be denied in non-capital cases, the court noted that in such cases a defendant must be found, after a "full-blown adversarial hearing," to pose a danger to specific individuals or to the community at large.

Art. 2, section 22(A) ran afoul of the U.S. Constitution, the Arizona Supreme Court ruled, because it required a court "to turn a blind eye to the individual facts and automatically deny bail in every case based on proof of likely guilt." This, the court said, was "constitutionally fatal."

Finally, the state supreme court said that while sex crimes are always serious, not every person who commits one is a danger to the community. For example, the court pointed out that a sex offense against a person under the age of 15 can be committed by a person of any age under Arizona law, and may also be consensual. "Hence ... the offense sweeps in situation 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 the defendant's danger to anyone," the court held.

"Accordingly, we hold that the provisions of article 2, section 22(A) of the Arizona Constitution and A.R.S. § 13-3961(A)(3), categorically denying bail for all persons charged with sexual misconduct with a minor, are unconstitutional on their face," inconsistent with the due process protections of the Fourteenth Amendment to the U.S. Constitution.

The case was remanded to the trial court for "proceedings consistent with this opinion." See: Simpson v. Miller, No. CR-16-0227-PR (S. Ct. Az. 2017).

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