Arizona’s pending certiorari petition in Arizona v. Goodman provides the Supreme Court with an opportunity to review the important issue of the circumstances under which the Constitution permits an accused sex offender to be denied bail pending trial. In 2002, Arizona voters amended their state constitution, rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a narrowly divided opinion, the Arizona Supreme Court found that this measure unconstitutional. And yet the Court’s opinion makes clear that the Constitution does not prohibit denying bail to defendants who present (1) “a continuing danger to the community” or (2) “a risk of flight.” Nor does the Constitution prohibit categorically denying bail based on the nature of the charged offense. Indeed, thirty-four states categorically deny bail to persons charged with capital offenses, murder, specified sex offenses, or offenses punishable by life imprisonment.
Review of the Arizona Supreme Court’s decision is needed to resolve the conflict between it and the Court’s precedent on an important issue of constitutional law that affects the criminal justice system, crime victims, and community safety in States across the Nation. The Court’s review is especially needed because of the serious implications for victims and their communities if the judgment below is permitted to stand. Given sex offenders’ high recidivism rates, and the life-altering harm suffered by their victims, Arizona’s legislature was entirely reasonable when it opted to categorically deny bail to sexual-assault defendants on the ground that sexual assault is an adequate proxy for future dangerousness - and to build in procedural protections that go above and beyond in ensuring due process. The Constitution does not prohibit States like Arizona and others from taking these steps to ensure sex offenders are brought to justice, victims are protected, and communities are safeguarded.
Ho, Allyson N.; Cassell, Paul; Hubbard, Bradley; Squiers, Cristina M.; Kiernan, Elizabeth A.; and Twist, Steven J., "State of Arizona v. Guy James Goodman: On Petition for a Writ of Certiorari to the Arizona Supreme Court" (2018). Utah Law Faculty Scholarship. 137.