State v. Wein

417 P.3d 787

STATE of Arizona, Petitioner,

v.The Honorable Kevin B. WEIN, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,Guy James Goodman, Real Party in Interest.

No. CR-17-0221-PR

Supreme Court of Arizona.

Filed May 25, 2018

William G. Montgomery, Maricopa County Attorney, Lisa Marie Martin (argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Nicholaus Podsiadlik (argued), Jamie Allen Jackson, Deputy Public Defenders, Phoenix, Attorneys for Guy James Goodman

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Rusty D. Crandell (argued), Assistant Solicitor General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General

David J. Euchner (argued), Tucson, Deputy Public Defender, Attorney for Amici Curiae Arizona Attorneys for Criminal Justice and Pima County Public Defender

Jared G. Keenan, Kathleen E. Brody, Phoenix, Attorneys for Amicus Curiae American Civil Liberties Union Foundation of Arizona; Andrea Woods, American Civil Liberties Union Foundation Criminal Law Reform Project, New York, NY, Attorneys for the American Civil Liberties Union and the American Civil Liberties Union of Arizona

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICE PELANDER joined. JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ, dissented. JUSTICE GOULD, joined by JUSTICE LOPEZ, dissented.

JUSTICE TIMMER, opinion of the Court:

¶ 1 Persons charged with sexual assault must not be released on bail if they pose a danger of committing new sexual assaults or other dangerous crimes while awaiting trial. The question here is how this may be accomplished in a manner that furthers this public-safety goal while preserving an accused’s constitutionally guaranteed liberty interest.

¶ 2 Article 2, section 22(A)(1), of the Arizona Constitution and A.R.S. § 13–3961(A)(2) categorically prohibit bail for all persons charged with sexual assault if "the proof is evident or the presumption great" that the person committed the crime, without considering other facts that may justify bail in an individual case. We hold that these provisions, on their face, violate the Fourteenth Amendment’s Due Process Clause. Unless the defendant is accused of committing sexual assault while already admitted to bail on a separate felony charge, the trial court must make an individualized bail determination before ordering pretrial detention. See Ariz. Const. art. 2, § 22 (A)(2)–(3).

BACKGROUND

¶ 3 The Arizona Constitution provides that all persons charged with crimes shall be bailable unless the accused is charged with a crime that falls within an exception and the proof is evident or the presumption great that he committed that crime. Ariz. Const. art. 2, § 22 (A). Before 2002, these exceptions were limited to capital offenses, felony offenses committed while the accused is on bail for a separate felony charge, and felony offenses when the person charged poses a substantial danger to any other person or the community and no conditions of release would reasonably assure safety. A.R.S. § 13–3961, historical note.

¶ 4 In 2002, Arizona voters added to the listed exceptions by passing Proposition 103, which amended article 2, section 22(A)(1), to forbid bail when the proof is evident or the presumption great that an accused committed sexual assault, sexual conduct with a minor under fifteen years of age, or molestation of a child under fifteen years of age ("Proposition 103 offenses"). See id. ; see also A.R.S. § 13–3961(A)(2)–(4) (codifying Proposition 103). Proposition 103 also declared that the purposes of bail and any conditions for release include "[a]ssuring the appearance of the accused," "[p]rotecting against the intimidation of witnesses," and "[p]rotecting the safety of the victim, any other person or the community." Ariz. Const. art. 2, § 22 (B); A.R.S. § 13–3961, historical note.

¶ 5 In Simpson v. Miller (Simpson II ), 241 Ariz. 341, 349 ¶ 31, 387 P.3d 1270, 1278 (2017), cert. denied , Arizona v. Martinez , ––– U.S. ––––, 138 S.Ct. 146, 199 L.Ed.2d 37 (2017), this Court held article 2, section 22(A)(1), and § 13–3961(A)(3) facially unconstitutional as they related to charges of sexual conduct with a minor under fifteen years of age. After Simpson II the superior court required individualized bail determinations pursuant to § 13–3961(D) for all persons charged with Proposition 103 offenses. Section 13–3961(D) provides, in relevant part:

[A] person who is in custody shall not be admitted to bail if the person is charged with a felony offense and the state certifies by motion and the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, 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 that the proof is evident or the presumption great that the person committed the offense.

¶ 6 In 2017, the State charged Guy Goodman with sexually assaulting a victim in 2010. "A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." A.R.S. § 13–1406(A). The state can charge a person with sexual assault at any time as no statute of limitations applies to the offense. See A.R.S. § 13–107(A).

¶ 7 Over the State’s objection that sexual assault remains a non-bailable offense after Simpson II , the superior court conducted a § 13–3961(D) bail hearing. A police officer testified that the victim claimed that Goodman, a guest in the victim’s home after a night of socializing, touched her vaginal area beneath her underwear while she was sleeping and without her consent. DNA tested from an external vaginal swab confirmed this contact. The officer also said that Goodman, when confronted with the DNA results, admitted digital penetration. The court ruled that although there was proof evident or a presumption great that Goodman committed the offense, the State had failed to "meet its burden of clear and convincing evidence to show that [Goodman] poses a substantial danger to other persons or the community." (The State did not assert that Goodman committed a "violent offense," which is defined as either a dangerous crime against children or terrorism. A.R.S. § 13–3961(D).) The court reasoned that "[t]here was no evidence of any recent felony criminal history or prior similar offenses or arrests nor any evidence of criminal offenses between the time of this alleged offense in 2010 and today," nor any history of contact, threats, or intimidation aimed at the victim or any witnesses. The court set bail at $70,000, required that Goodman’s movements be electronically monitored upon release, and imposed other conditions, including that he not possess any weapons, use non-prescription drugs, or contact the victim.

¶ 8 On special action review, the court of appeals vacated the bail order, holding that "[s]exual assault remains a non-bailable offense" after Simpson II , and so a § 13–3961(D) hearing is not required. State v. Wein , 242 Ariz. 352, 353 ¶ 1, 395 P.3d 1111, 1112 (App. 2017).

¶ 9 We granted review to determine whether the categorical denial of bail for persons charged with sexual assault, when the proof is evident or the presumption great as to the charge, violates due process, an issue of statewide importance. Although Goodman pleaded guilty and was sentenced while this matter was pending, we nevertheless decide the issue because it is capable of repetition yet could evade review due to the temporary duration of pretrial detention. See State v. Valenzuela , 144 Ariz. 43, 44, 695 P.2d 732, 733 (1985). We have jurisdiction pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. § 12–120.24.

DISCUSSION

I. Restrictions on pretrial detention: the Salerno standards

¶ 10 The constitutional validity of Proposition 103’s prohibition on bail for defendants accused of sexual assault is an issue of law we review de novo. See Simpson II , 241 Ariz. at 344 ¶ 7, 387 P.3d at 1273. As the challenging party, Goodman bears the "heavy burden" of demonstrating that the restriction is facially unconstitutional. United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

¶ 11 The Due Process Clause prohibits the government from punishing an accused by jailing him before trial. See id. at 746, 107 S.Ct. 2095. But if pretrial detention is regulatory rather than punitive, the government’s interest can, in appropriate and exceptional circumstances, outweigh an individual’s "strong interest in liberty," an important, fundamental right. Id. at 748, 750, 107 S.Ct. 2095 ; see also id. at 755, 107 S.Ct. 2095 ("In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.").

¶ 12 In Salerno , the United States Supreme Court used a two-step standard to determine whether the Bail Reform Act’s provisions permitting pretrial detention constituted impermissible punishment or potentially permissible regulation. Id. at 747, 107 S.Ct. 2095. "Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on [1] whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and [2] whether it appears excessive in relation to the alternative purpose assigned to it." Id. (internal quotation marks and alterations omitted) (quoting Schall v. Martin , 467 U.S. 253, 269, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) ). The Court concluded that the Act was regulatory. Id. at 748, 107 S.Ct. 2095 ; cf. Simpson II , 241 Ariz. at 347 ¶ 20, 387 P.3d at 1276 (applyi...