The Eighth Amendment to the United States Constitution covers a lot of ground. It provides that excessive fines should not be imposed, and that cruel and unusual punishments should not be inflicted. It also says that “excessive bail shall not be required.” Of course, there have always been situations in which a judge may decide to deny bail to a defendant charged with a crime. Generally, the test involves issues such as whether the person is expected to appear when required in the case, and whether, if bail is granted, the person presents a danger to the community or to witnesses. But these issues are ordinarily decided on a case-by-case basis.
In Arizona, the legislators decided that in some particular types of cases, bail should not be available under any circumstances, at least where there is a good chance (evident proof or presumption great) that the defendant is guilty. In that situation, A.R.S. 13-3961 says that there can be no bail, if the charge is:
- A capital offense; or
- One of three serious sex crimes; or
- A serious felony, where the defendant is likely to be an illegal alien.
The last of the three circumstances, that is, denying bail to those who may be undocumented, was declared unconstitutional by the 9th Circuit Court of Appeals in 2015, and the United States Supreme Court declined to review the decision.
This year the courts took aim at the portion of the law applicable to people charged with certain sex crimes – sexual assault (rape), sexual conduct with a minor under 15 years of age, or sexual conduct with a minor under 15 years of age. The Arizona Court of Appeals recently ruled that even in the case of accused sex offenders, and even where there is significant evidence of guilt, it is unconstitutional to deny bail across the board. This was a split decision, and Maricopa County Attorney Bill Montgomery says that he will ask the Arizona Supreme Court to review the case.
The media, always eager to suggest a disaster of epic proportions, has predicted doom. An example is the Fox headline “Sex offenders might be released by AZ appeals court ruling.” Well, they just forgot one thing. In each of these cases, the suspect has been charged with a crime, but not convicted. A person is presumed innocent until proven guilty, right? Sure, except in Arizona, where the legislature would suspend the presumption in the case of alleged sex offenders, and, of course, undocumented immigrants!
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