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Is a Categorical Denial of Bail for Accused Sex Offenders Constitutional?

The Supreme Court will soon consider whether to grant a certiorari petition filed by Arizona, which involves a voter-approved amendment to the Arizona Constitution rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a 4-3 divided opinion, the Arizona Supreme Court concluded that this amendment was unconstitutional. Arizona has sought review of that decision. Full Article

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  1. Km

    This is a no brainer. “Presumption great,” is automatically unconstitutional. All accussed are given the inmediate presumption of innocence.

    • Dustin

      @ Km:

      A no-brainer, indeed. I didn’t even think about the loss of presumption of innocence.

  2. ReadyToFight

    Presumption is replacing reality.
    Pretty soon they’ll be dressed in loincloth sacrificing us to the sun god.

  3. Dustin

    “Frightening and high” rears its ugly head yet again. That, and the usual complaints of sex crime in general, the handful of truly horrific cases being presented as typical. Yet, nowhere can any proponent of this amendment show one single case of someone committing a new sex offense (or any other crime, for that matter) while out on bail after arrest for a different sex offense. Not saying it has never happened, but I’m comfortable saying that the number of such cases nationwide is in the single digits.

    Claiming a higher flight risk is equally futile, IMHO. I generally frown on risk assessment anyway. It’s just a way of someone claiming to be able to predict the future and be correct no matter what the outcome, like asking who is going to win the Super Bowl and answering whoever scores the most points.

    But I am encouraged that Arizona considers inclusion on the registry a punishment significant enough to increase flight risk. To me, it shows that courts are struggling to maintain the “registration is not punishment” reasoning.

  4. txso4life

    This case could be ugly for us if SCOTUS grants review. I cant believe the volokh conspiracy has taken the side that the state can start punishing the defendant before obtaining a conviction and if that is not enough they stated and supporting the lying $ex offender frighten recidivism rate in their amicus briefs along with texas and a number of states briefs reinstating the inaccurate recidivism rate of registrants.

  5. E

    “Punishment and consequences.” He sure jumps through hoops to say registration is a big deal but not punishment. (Eye roll)

    “Sexual-assault convictions certainly raise the specter of severe punishments—especially considering not only the possibility of a lengthy prison sentence, but also the serious collateral consequences, including possible involuntary commitment and sex-offender registration. These punishments and consequences create a significant risk that accused sex offenders will flee rather than face justice.”

  6. E

    I’d like to see someone on our side with experience like mike r or AJ or others take a crack at directly debunking the stats that they throw at us. Where are these DOJ studies?

    Do both sides have valid research supporting our points and we’re arguing about who’s study is better? In the recent two amici curiae from the group(s) of scholars they talk a lot about research but I’ve never seen them actually take on and CORRECT the misinterpretations that DAs continue to spew. Until that happens it’s like he said/she said with dualing research.

    Also note that he is reframing “high.” 14% is now high, even if it’s not “up to 80%” (Smith nonsense). He’s conflating so many things it is so intellectually dishonest.

    “A substantial body of academic literature, supported by data collected by the U.S. Department of Justice, confirms that sex offenders reoffend at extremely high rates—regardless of how reoffending is defined (convictions versus arrests) and regardless of subsequent offense that counts as reoffending, be it another sex crime, a different violent crime, or any other type of subsequent crime. For example, a Justice Department study found that a significant number of sex offenders—14 percent—not only reoffend, but also do so while out on bail.”

  7. ReadyToFight

    More than 44 million people suffer with mental health issues in America…….those in power included.

  8. TS

    I hope you all here have taken the time to read the comments of those who commented on this article. Most are not impressed with the argument presented including the poor framing of the stats they want to use. This legal scholar from the U of UT is only speaking for himself and those who present the brief to SCOTUS, not Volokh or the blog himself (see editorial independence tab on the website). (I have to wonder why the blog moved to and no longer is hosted by WAPO, but that is another topic for another day.)

    As for correcting the misinterpretations of the stats, that is a long drawn out battle that will take place in every court until SCOTUS debunks them themselves as CJ Roberts hopes to correct some of their previous mistakes (from the U of MN interview). The more stats that debunk the falsehoods currently being used in efforts, the more the battle will be drawn out until it is really understood. Those who use these poor stats must be really hoping the justices are not paying attention, have their heads buried in the sand, just don’t care, or the opposition is so green (or less than skilled as required), they don’t know what they are doing.

    It really comes down to dueling paintbrushes (no, not banjos) by those who want to paint their respective pictures with the colors and data they feel is pertinent. Punch, counter punch, punch, counter punch until folks realize who really has the correct data set and the emotion is left outside the court room.

    This brief seems to want to rehash all of the statistical data already being presented in courts and countered. I think their flight risk portion is extremely weak and gives no indication of ensured flight would happen if bail is granted and paid for.

    In the end, this is a constitutional issue that is already on the books as I see it. A person can be denied bailed or have the bail made so high it cannot be made where outright denying them bail based upon “presumption or such proof is evident” is counter to our constitution. Just because there is DNA, for example, possibly at the scene, it still has to be processed and no DNA processing is that fast today (w/o a rush order by someone with power to move them to the head of the processing line which could only possibly introduce higher possibilities of error into the process). Given today’s genetic web reach, out to three cousins as I noted recently, the authorities need to make sure they do the due diligence needed to ensure they deny bail to the right person if there are close genetic matches possibly from the scene. This is just my two cents…

    • Notorious DIK

      TS, I was a bit skeptical when Volokh came on board at Reason. Now, I’m convinced that it is a bad fit. Volokh has always had a “sex-offender” hostility and this just shows the extent.

      • TS

        @Notorious DIK

        I can see what you are saying about the bad fit the blog has with Reason. It is contrary to what Reason stands for.

  9. Ron

    If it’s a “no Brainerd”, why is it going to the Supreme Court?

  10. USA

    This is very disturbing news! Are you going to be tried twice? In essence, if your arrested for rape/innocent or not, you might remain in jail for a long time! This is certainly one reason to draw out a case and force someone to take a plea! What about California? No bail? Can you imagine getting arrested in OC? In the mean time, you might lose your job, home, business and who knows what else? It clearly gives the DA leverage!

    • Strunk & White

      Could you please try using the punctuation mark known as the period every now and then? Sometimes something is merely a statement, not an exclamation or question.

  11. Chris F

    This is a violation of separation of powers just like mandatory so registration.

    The judiciary is supposed to determine what is needes to punish, rehabilitate, and protect the public and must taylor it to the individual.

    Legislature can provide guidlines and tools but they must be fair and a range to deal with the possible situations. Otherwise, they exceed their power and trample on the judicial role.

  12. mike r

    You are absolutely correct Chris. I will work this into the substantive portion of my suit. Not this about bail but about the separation of powers issue that we raised in the punishment issues. IDK though, does the separation of powers have to be in relation to punishment? I have to make the case that it does not and that it is a substantive due process claim…

  13. USA

    Separation of powers? Unless you guys have attended law school or have any legal background, you really shouldn’t be posting any legal information. I’ve read (it’s all over this site) the multiple paragraphs you guys write in response (your not lawyers) in response to comments or articles! You can state whatever you desire, but unless your at least a paralegal, it’s useless. It’s really beginning to ruin this site. Furthermore, it seems like many of you attack those who oppose your thoughts or suggestions? The one thing (this is why their are only a few individuals who make comments/people are afraid of being attacked with multiple paragraph responses) I don’t see is people thinking out of the box! You have to our think them! Wake up!

    • @USA

      Many of us appreciate the legal debate and info exchange on this site, so we will highly encourage it to continue and exercise their right to free speech.

    • @USA

      The site is ruined for you? Then please stop coming back. Stop complaining about other people’s posts. Scroll past them. Whatever, but stop complaining.

    • Chris F (@USA)


      First, if we wait for a lawyer to chime in this site will be empty. Janice only makes general announcements and answers a few basic fact questions and no other lawers are chiming in. I know she is busy and dont blame her.

      Second, I have gone through 5 supposedly good lawyers and only one did a good job and that was to provide a very expensive write of habeus corpus.

      Most lawyers wont risk their reputations by helping us at all. Even when paid, most give you minimum effort. I know one that purposefully screwed his sex offense clients over for the last 10 years while giving ok perfirmance to others and only just now is under scrutiny from the bar. He actually had judges deny plea deals that were too harsh on his clients.

      Also, most lawyers save time and money by regurgitating old arguments. That is why we keep seeing the same failures over and over on SO cases.

      Law isnt brain surgery. If you research a niche area like ours you can grasp a lot of it without 8 years of school. If lawyers wont help and you wont waste the brain power to help yourself, then you will continue to be taken advantage of by a broken system that will not help us.

      • AJ

        @Chris F:
        Here! Here! As well, perhaps cases discussed and dredged up here may help someone if they do manage to find a helpful attorney. I would rather walk into an attorney’s office as an informed client versus a blind (read: gullible) one. Having a suggestion of cases to research and use could also save a client many hours of attorney fees for research.

    • AJ

      So what sort of posts are acceptable to you? Also, please provide either an example or a synopsis of any post(s) you’ve made that meet whatever criteria answer my question.

  14. mike r

    USA, many many cases have been won pro se so your perception and assertions do not hold water. I will leave the other statements alone as they have been addressed appropriately already. Now, so the attorneys on AVVO have chimed in and the court has already made a reversible procedural error by not responding or taking judicial notice of my properly requested motion and request. i am in the process of finding out exactly what to do about this if there is anything I can do at this stage before appeal. That request should have been addressed before and during the courts consideration of the motion to dismiss.

  15. USA

    You guys are hilarious! Mike R, I bet you take hours to write your response to try and sound intelligent. Lol. I don’t recall asking about your appeal? I thought this was a comment section? The only thing I read is paragraph after paragraph of tedious comments about you and yourself? I think your very insecure and you guys can complain all day long, but it won’t help! I won’t brag that I hold 4 degrees and filed my 17B and expungement/COR on my own. I don’t have to exploit who I’am to feel good or correct other people grammar or punctuation to feel good! So, go ahead and correct me or respond back! It just serves notice that my comments are actually factual! As noted, we should be amending SB 384, rather than reading the books Mike R posts about himself on this site! Yes, you can walk into court all day long with your so called appeals, but unless your a paralegal or Attorney, it’s a total waste of time!

    • Strunk & White

      “I don’t recall asking about your appeal?”
      –>How is this a question?

      “I thought this was a comment section?”
      –>How is this a question?

      “The only thing I read is paragraph after paragraph of tedious comments about you and yourself?”
      –>How is this a question?

      ” I won’t brag that I hold 4 degrees and filed my 17B and expungement/COR on my own.”
      –>Except you just did. Hopefully one of those degrees wasn’t for English.

      “It just serves notice that my comments are actually factual!”
      –>No, it just shows your narcissism.

      “As noted, we should be amending SB 384”
      –>So it’s wrong to talk about law as a non-lawyer, but it’s okay to pretend to be a legislator? Or who exactly is the “we” who should be amending SB 384?

      “unless your a paralegal or Attorney, it’s a total waste of time!”
      –>Does this include people who filed their own expungements and CORs?
      –>Name a court in the land where a paralegal can appear on behalf of a client. Here’s a hint: And here’s the answer:

      First, a paralegal may not establish the attorney-client relationship. Second, a paralegal may not give legal advice. Third, a paralegal may not appear in court on behalf of a client — and this prohibition covers the taking and defending of depositions and the signing of pleadings or other papers to be filed in court.

      • Notorious D.I.K. / Kennerly

        Just to pile on a bit and because he’s asking for it: his use of “your” in place of the contraction, “you’re,” is also a source of continuous irritation/amusement (my varying reactions are mood-dependent).

    • Tim Moore

      4 degrees?!!! Wow, I barely have one. And a half if you count my AA. Sad. I would like to have more, so I can post them prominently over the mantle, and my snooty relatives can see them when they come for Thanksgiving. Then they will have no reason to think of me as such a loser. Where did you buy them?

      • mike r

        OMG, LMFA totally Off. Yeah sure as hell be a lot easier than what I am going thru right now with calculus and historical geology. Man if I wrote like USA in any of my classes contradicting myself in sentences and punctuation I sure as hell would not have a 3.5 GPA. Anyone with four degrees should just be acclimated to using good punctuality and reasoning to where they would not do that, but of course this is America and our education systems. You would get away with that though because at my community college no way… I know this is a web forum but still like I stated, acclamation. Did he mention para legal or something as well. Hmmmmm….

  16. miker

    You hold four degrees but yet you state stuff like this self contradiction in a single sentence. Wow.
    “I won’t brag that I hold 4 degrees and filed my 17B and expungement/COR on my own.”
    Anyways good for you and everything you state USA… Ignored….

  17. Chris F (@USA)

    Ok, here is my final take on all this.

    First, your original post on this article was fine to me. I personally don’t care about grammar and spelling because my only way to post right now is a little phone with horrible auto correct and tiny keyboard. I can figure out what is meant.

    Second, this site is called “alliance for constitutional sex offense laws”. To me, that sounds like discussing both the constitution and laws is fair game. Many of the articles referrence cases, laws, and the constitution so the fact some of us dive deep into understanding them and the prior cases they reference should remain well in scope of what is expected to discuss here.

    Third, the moderators on here are quite capable of keeping things in check while also giving us wide latitude now and then. You don’t see it, but they have not allowed some long or irrelevant posts or posts that should be accomplished by an email when only a couple people are interested in seeing it.

    Forth, I welcome and encourage anyone to disagree or counter my posts. That is how I learn abd correct misunderstandings. AJ in particular has been great letting me know if a case I bring up to supoort us has already been superseded by a newer case precident.

    If those with the time and intelligence on here don’t continue to research and speculate about how we can fix things, then nobody else will. On the flip side, there are many intelligent people with an agenda to lie and manipilate the masses to keep us down. They certainly don’t care if thier comrades are lawyers.

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