- Associated Press - Thursday, February 9, 2017

PHOENIX (AP) - It’s unconstitutional to categorically deny bail for people charged with sexual conduct with a minor under age 15 without first determining that the defendants are dangerous to somebody else or the community, the Arizona Supreme Court ruled Thursday.

The unanimous ruling overturned part of a get-tough-on-crime constitutional amendment approved by voters in 2002.

The amendment and a related implementation law that was also overturned permitted defendants charged with certain sex crimes to be denied bail if there’s enough evidence to presume they are guilty. But the ruling said the provisions on defendants charged with sexual conduct with a minor under age 15 violate due-process rights provided by the 14th Amendment.

Justice Clint Bolick wrote in the opinion that the case presented a collision between the state’s interest in protecting public safety and “the fundamental due process right to be free from bodily restraint,” Bolick said.

Some crimes inherently demonstrate future dangerousness and while sexual conduct with a minor is always a serious crime, committing that offense doesn’t always indicate a threat of future dangerousness, Bolick wrote.

However, defendants still can be held without bail if courts determine they constitute threats, he said.

David Euchner, a Pima County assistant public defender who helped file a brief on behalf of a group of criminal defense attorneys, said the ruling “properly recognizes that a person charged with a crime, even a serious crime, is presumed innocent. Those accused of crimes deserve to be treated as innocent people, right up until the jury returns a guilty verdict.”

“While the Court’s analysis of the role of the Supremacy Clause properly gives no more weight to a citizen’s initiative than any legislative act and is certainly thorough and reasoned, it does not fully acknowledge the serial nature and therefore risk to the community that sexual offenses against children categorically present,” Maricopa County Attorney Bill Montgomery said in a statement. “When determining sufficient conditions of release to prevent additional victimization, I trust judges in individual cases will consider the full threat sexual predators pose to the children in our community and the flight risk inherent in those who victimize the most innocent and defenseless.”

Arizona Attorney General Mark Brnovich, whose office also defended the bail-denial provision, did not immediately respond to a request for comment.

The 2002 measure approved by voters also allowed bail to be denied for defendants charged with sexual assault and molestation of a child under 15. There already was - and still is - a similar provision for defendants charged with first-degree murder. Thursday’s ruling did not address those crimes.

Bolick was joined in the opinion by four other justices. Two additional justices appointed by Gov. Doug Ducey after the court heard arguments in the case did not participate in the decision.

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