Arizona Law on Bail

Article 2, §22(A) of the Arizona Constitution states:

All persons charged with crime shall be bailable by sufficient sureties, except:

  1. For capital offenses, sexual assault, sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age when the proof is evident or the presumption great.

  2. For felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge. Originally seen published on


The Arizona Court of Appeals has held that defendants held pursuant to Art. 2, §22(A) are entitled to a bail hearing according to Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004). The hearing must have the following procedural safeguards: (1) the right to counsel; (2) the opportunity to testify and present information; (3) the opportunity to cross-examine opposing witnesses; (4) the statutory factors governing the preventive-detention decision-making process; (5) a requirement of findings of fact and a statement of reasons for the decision; and (6) a requirement of proof by clear and convincing evidence. See Id., 207 Ariz. 261, 274, 85 P.3d 478, 491.

On February 9, 2017, the Supreme Court of Arizona held that Article 2 section 22(A)(1) of the Arizona Constitution and A.R.S. § 13-3961(A)(2)-(4) were unconstitutional because they violated the 14th Amendment due process guarantee in Simpson v. Miller, CR-16-0227-PR (¶ 2). The Court found that such defendants are instead subject to A.R.S. § 13-3961(D):

“Because Martinez is charged with a felony, he would be subject to A.R.S. § 13-3961(D), which allows the court to deny bail on the state’s motion if the court finds by clear and convincing evidence following a hearing that (1) “the person charged poses a substantial danger to another person or the community,” (2) “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 (3) “the proof is evident or the presumption great that the person committed the offense.” This procedure is essentially the same as the one upheld in Salerno. Under this provision, the state may deploy the entire range of permissible conditions of release to ensure community safety, including GPS monitoring. The court may deny bail altogether for defendants for whom such conditions are inadequate, which may well include many or most defendants accused of sexual conduct with a minor under age fifteen.

Under our reading of Salerno, the state may deny bail categorically for crimes that inherently demonstrate future dangerousness, when the proof is evident or presumption great that the defendant committed the crime. What it may not do, consistent with due process, is deny bail categorically for those accused of crimes that do not inherently predict future dangerousness.

The State urges that we should not hold the challenged provisions unconstitutional on their face because they may not be unconstitutional in all instances. Seee.g., Salerno, 481 U.S. at 751. The State, however, is confusing the constitutionality of detention in specific cases with the requirement that it be imposed in all cases. Sexual conduct with a minor is always a serious crime. In many but not all instances, its commission may indicate a threat of future dangerousness toward the victim or others. But because it is not inherently predictive of future dangerousness, detention requires a case-specific inquiry. Accordingly, we hold that the provisions of article 2, section 22(A) of the Arizona Constitution and A.R.S. § 13-3961(A)(3), categorically denying bail for all persons charged with sexual conduct with a minor, are unconstitutional on their face. Defendants for whom future dangerousness is proved may still be held under A.R.S. § 13-3961(D) as set forth above.” ( ¶ ¶ 29-31).

Arizona superior courts are following Simpson v. Miller by setting bond amounts and other release conditions for defendants previously held without bail under Article 2, section 22(A) of the Arizona Constitution.

If you or a loved one is being held without bond, you need an experienced criminal attorney to see if pretrial release is possible. Attorney Gary Rohlwing has over thirty years experience. Call him today for a free consultation.


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