                               IN THE

   SUPREME COURT OF THE STATE OF ARIZONA

                  JASON DONALD SIMPSON, A.K.A.
                   JASON DONALD SIMPSON, SR.,
                           Petitioner,

                                  V.


 HONORABLE PHEMONIA MILLER, JUDGE PRO TEMPORE OF THE SUPERIOR
COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                      Respondent Commissioner,

                        STATE OF ARIZONA,
                        Real Party in Interest.


                        JOE PAUL MARTINEZ,
                             Petitioner,

                                  V.


 HONORABLE ROLAND J. STEINLE, JUDGE OF THE SUPERIOR COURT OF THE
     STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                        Respondent Judge,

                        STATE OF ARIZONA,
                        Real Party in Interest.


                        No. CR-16-0227-PR
                       Filed February 9, 2017

     Special Actions from the Superior Court in Maricopa County
        The Honorable Phemonia Miller, Judge Pro Tempore
                The Honorable Roland J. Steinle, Judge

               Nos. CR2015-0134762; CR2014-118356,


                  REVERSED AND REMANDED
     SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                   Opinion of the Court


             Opinion of the Court of Appeals, Division One
                240 Ariz. 208, 377 P.3d 1003 (App. 2016)
                               VACATED


COUNSEL:

William G. Montgomery, Maricopa County Attorney, David R. Cole
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Woodrow C. Thompson, Hannah H. Porter, Katherine E. Hollist, Gallagher
& Kennedy, P.A., Phoenix; Hector J. Diaz, Andrea S. Tazioli, Quarles &
Brady, LLP, Phoenix, Attorneys for Jason Donald Simpson

Jean-Jacques Cabou (argued), Alexis E. Danneman, Sarah R. Gonski,
Perkins Coie, LLP, Phoenix; Brian F. Russo, Law Offices of Brian F. Russo,
Phoenix, Attorneys for Joe Paul Martinez

Mark Brnovich, Arizona Attorney General, Eryn M. McCarthy, Assistant
Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Superior
Court in Maricopa County

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Rusty D. Crandell, Assistant Attorney General, Michael G. Bailey
(argued), Assistant Attorney General, Phoenix, Attorneys for Amicus
Curiae Arizona Attorney General; Robert L. Ellman, General Counsel,
House of Representatives, Phoenix, Attorney for Amicus Curiae Speaker of
Arizona House of Representatives; and Greg Jernigan, General Counsel,
Arizona State Senate, Phoenix, Attorney for Amicus Curiae President of
Arizona Senate

Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona,
Phoenix; Andrea Woods, Ezekiel Edwards, American Civil Liberties Union
Foundation, Criminal Law Reform Project, New York, NY, Attorneys for
American Civil Liberties Union and American Civil Liberties Union of
Arizona; and Anne Chapman, Mitchell Stein Carey, PC, Phoenix, Attorneys
for Amicus Curiae National Association of Criminal Defense Lawyers




                                    2
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

Mikel P. Steinfeld, Maricopa County Public Defender’s Office, Phoenix, and
David J. Euchner, Pima County Public Defender’s Office, Tucson, Attorneys
for Amicus Curiae Arizona Attorneys for Criminal Justice, et al.

Colleen Clase, Jessica Gattuso, Eric Aiken, Scottsdale, Arizona Voice for
Crime Victims; Jamie Balson, Arizona Coalition to End Sexual & Domestic
Violence, Phoenix, Attorneys for D.D. and D.L.

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


JUSTICE BOLICK, opinion of the Court:

¶1            Arizona’s Constitution and laws forbid bail for defendants
accused of sexual conduct with a minor under age fifteen when the proof is
evident or the presumption great that the defendant committed the crime.
Because that prohibition is not narrowly focused to protect public safety,
we hold that it violates the Fourteenth Amendment’s due process
guarantee.
                                    I.

¶2           Article 2, section 22(A) of the Arizona Constitution’s
Declaration of Rights provides in part:

               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.

¶3             The crimes of sexual assault, sexual conduct with a minor
under age fifteen, and molestation of a child under age fifteen were added
to capital offenses under section (A)(1) by the voters through Proposition
103 in 2002. The legislature codified the provisions of section (A)(1) in
A.R.S. § 13-3961(A)(2)–(4).

¶4            The State charged Joe Paul Martinez with multiple sexual
offenses, including sexual conduct with a minor under age fifteen, a class 2
                                      3
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

felony under A.R.S. § 13-1405(B) and a dangerous crime against children
under A.R.S. § 13-705(P)(1)(e). (After we granted review, Jason Donald
Simpson accepted a plea agreement, making his case moot. We therefore
focus on Martinez’s case.) Martinez filed a petition to be released on bail.
The trial court conducted an evidentiary hearing and concluded that the
proof was evident or presumption great that Martinez committed sexual
conduct with a minor under age fifteen, thus rendering him ineligible for
bail pursuant to A.R.S. § 13-3961(A)(3). He has been held in custody
without bail since April 2014.

¶5            Martinez       unsuccessfully      challenged       the      facial
constitutionality of § 13-3961(A)(3) and the corresponding provision of the
Arizona Constitution, article 2, section 22(A)(1). Accepting special action
jurisdiction and granting relief, the court of appeals, by a 2-1 vote, reversed,
holding the provisions unconstitutional because an individualized
determination of dangerousness is necessary to withhold bail. Simpson v.
Miller, 240 Ariz. 208, 215 ¶ 22, 377 P.3d 1003, 1010 (App. 2016).

¶6             We granted review because the constitutional issue presented
is one of first impression and statewide importance. See Brewer v. Burns,
222 Ariz. 234, 237 ¶ 8, 213 P.3d 671, 674 (2009). We have jurisdiction
pursuant to article 6, section 5 of the Arizona Constitution and A.R.S. § 12-
120.24.
                                          II.

¶7            This case presents questions of law, which we review de novo.
US West Commc’ns, Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242, 244 ¶ 7, 34 P.3d
351, 353 (2001). In a facial constitutional challenge, the party challenging
the law must establish that it “is unconstitutional in all of its applications,”
a standard the United States Supreme Court characterizes as “exacting.”
City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015).

¶8             Reviewing a state constitutional provision under the United
States Constitution requires great care. In our federalist system of dual
sovereignty, states retain certain antecedent powers, including the power
to protect their citizens from crime. See, e.g., Puerto Rico v. Sanchez Valle, 136
S. Ct. 1863, 1870–71 (2016); Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor,
J., dissenting) (“The States’ core police powers have always included
authority to define criminal law and to protect the health, safety, and
welfare of their citizens.”). In that system, state constitutions are our basic
charters of state governance. See John D. Leshy, The Making of the Arizona
Constitution, 20 Ariz. St. L.J. 1, 4–5 (1988). Consequently, we strive
whenever possible to uphold their provisions. Where the national and state
                                        4
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

constitutions conflict irreconcilably, however, the latter must yield under
the Supremacy Clause. U.S. Const. art. VI, cl. 2; see also Ariz. Const. art. 2,
§ 3.

¶9              In this case, state interests of the highest order, advanced
through article 2, section 22(A)(1), collide with the fundamental due process
right to be free from bodily restraint. “No right is held more sacred, or is
more carefully guarded, by the common law, than the right of every
individual to the possession and control of his own person, free from all
restraint or interference of others, unless by clear and unquestionable
authority of law.” Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 215–16,
741 P.2d 674, 682–83 (1987) (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S.
250, 251 (1891)). Thus, “[i]n our society liberty is the norm, and detention
prior to trial . . . is the carefully limited exception.” United States v. Salerno,
481 U.S. 739, 755 (1987). At the same time, the United States Supreme Court
has “repeatedly held that the Government’s regulatory interest in
community safety can, in appropriate circumstances, outweigh an
individual’s liberty interest.” Id. at 748.

¶10           Freedom from pretrial detention absent extraordinary
circumstances traces to the common law, where the general rule was
against pretrial incarceration and in favor of bail, except for capital crimes—
an exception grounded in the belief that defendants in such cases would
flee to save their lives. Simpson v. Owens, 207 Ariz. 261, 267 ¶ 18, 85 P.3d
478, 484 (App. 2004). At common law, there were two hundred capital
crimes, which were reduced to twenty in the American colonies. Id. at 268
¶ 19, 85 P.3d at 485. For capital defendants, bail could be denied “where
the proof is evident or the presumption great” that the defendant
committed the charged offense—language echoed in article 2, section 22(A)
of the Arizona Constitution.

¶11          The right to bail in non-capital cases is rooted in American
and Arizona law:

               From the passage of the Judiciary Act of 1789, 1
               Stat. 73, 91, to the present Federal Rules of
               Criminal Procedure, Rule 46(a)(1), . . . federal
               law has unequivocally provided that a person
               arrested for a non-capital offense shall be
               admitted to bail. This traditional right to
               freedom before conviction permits the
               unhampered preparation of a defense, and


                                        5
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

              serves to prevent the infliction of punishment
              prior to conviction.

Stack v. Boyle, 342 U.S. 1, 4 (1951) (citing Hudson v. Parker, 156 U.S. 277, 285
(1895)). The Eighth Amendment and article 2, section 15 of the Arizona
Constitution also prohibit “excessive bail.” And of course article 2, section
22(A) recognizes a right to bail subject to specified exceptions.

¶12           However, the right to bail does not arise from the Eighth
Amendment itself. The Eighth Amendment derives from the English Bill
of Rights Act, which “has never been thought to accord a right to bail in all
cases, but merely to provide that bail shall not be excessive in those cases
where it is proper to grant bail.” Carlson v. Landon, 342 U.S. 524, 545 (1952).

 ¶13         Thus, the “Eighth Amendment has not prevented Congress
from defining the classes of cases in which bail shall be allowed in this
country.” Id.; see also Salerno, 481 U.S. at 752 (noting that the Eighth
Amendment “says nothing about whether bail shall be available at all”),
754–55 (“[W]hen Congress has mandated detention on the basis of a
compelling interest other than prevention of flight, . . . the Eighth
Amendment does not require release on bail.”); accord State ex rel. Romley v.
Rayes, 206 Ariz. 58, 62 ¶ 12, 75 P.3d 148, 152 (App. 2003) (holding that
Proposition 103 does not violate the Eighth Amendment). Rather, due
process requires that pretrial detention may be used only for regulatory
rather than punitive purposes. See Salerno, 481 U.S. at 747–48.

¶14           In Salerno, the Court upheld the Bail Reform Act of 1984
against a substantive due process challenge. 481 U.S. at 747. The law
allowed courts to deny bail for serious crimes of violence, offenses for
which the sentence is life imprisonment or death, serious drug offenses, and
certain repeat offenders. Id. In addition to showing probable cause that the
defendant committed the crime, the government also was required to prove
by clear and convincing evidence in a “full-blown adversary hearing” that
“no conditions of release can reasonably assure the safety of the community
or any person.” Id. at 750. “Given the legitimate and compelling regulatory
purpose of the Act” to prevent future crime by defendants who have
committed serious offenses, plus “the procedural protections it offers,” the
Court concluded that the law was not facially invalid under the Due Process
Clause. Id. at 752. Salerno provides the framework with which we assess
the constitutionality of article 2, section 22(A)(1) and A.R.S. § 13-3961(A)(3).
                                    III.



                                       6
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

¶15            The bail provisions enacted through Proposition 103 are
similar in some respects to those upheld in Salerno. Like the Bail Reform
Act, they are limited to specific serious crimes, they are intended to protect
public safety by preventing defendants from committing future crimes, and
they require a full-blown adversarial hearing. But unlike the hearing in
Salerno to determine that a defendant posed a danger to specific individuals
or the community at large, the hearing at issue here determines only “if the
proof is evident or the presumption great” that the person committed the
offense charged. It does not consider whether the defendant poses a danger
to others.

¶16             The “proof evident or presumption great” standard is robust.
In Simpson v. Owens, our court of appeals held that the state’s burden “is
met if all of the evidence, fully considered by the court, makes it plain and
clear to the understanding . . . [and] dispassionate judgment of the court
that the accused committed one of the offenses enumerated in A.R.S. § 13-
3961(A).” 207 Ariz. at 274 ¶ 40, 85 P.3d at 491 (adding that the “proof must
be substantial, but it need not rise to proof beyond a reasonable doubt”).
The court stated that “the hearing should take place as soon as is practicable
to ensure that the accused is afforded due process and to maintain the
presumption of innocence.” Id. at 278 ¶ 55, 85 P.3d at 495. At the hearing,
the defendant is entitled to counsel and can cross-examine witnesses. Id. at
275–76 ¶ 44, 85 P.3d at 492–93. The trial court must determine with specific
factual findings that the proof is evident or the presumption is great. Id.

¶17           In Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 775 (9th Cir. 2014),
the Ninth Circuit sitting en banc struck down article 2, section 22(A)(4) and
A.R.S. § 13-3961(A)(5), which forbade bail for illegal immigrants who were
found to have committed certain serious felony offenses “if the proof is
evident or the presumption great” that the defendant committed the
specified crime. The court applied a “heightened scrutiny” standard
derived from Salerno. Id. at 779–80. Construing Salerno to apply a three-
part test, the court concluded that the challenged provisions “do not
address an established ‘particularly acute problem,’ are not limited to ‘a
specific category of extremely serious offenses,’ and do not afford the
individualized determination of flight risk or dangerousness that Salerno
deemed essential.” Id. at 791. It thus concluded that the laws “are not
narrowly tailored to serve a compelling interest.” Id.

¶18             In this case, the court of appeals also concluded that all three
Salerno factors are necessary to uphold a bail restriction. Simpson, 240 Ariz.
at 211 ¶ 13, 377 P.3d at 1006 (“Salerno did not even suggest that fewer than
all of the safeguards in the Bail Reform Act might be allowable.”). The court
                                       7
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

found that the challenged provisions violated Salerno’s third prong because
they require a court “to turn a blind eye to the individual facts and
automatically deny bail in every case based on proof of likely guilt.” Id. at
212 ¶ 14, 377 P.3d at 1007. Thus, the majority concluded “that the absence
of the third Salerno factor is constitutionally fatal.” Id. ¶ 15.

¶19           The dissenting judge found that categorical bans on bail have
not been limited to murder or other capital crimes, id. at 217–18 ¶¶ 34–36,
377 P.3d at 1012–13 (Gould, J., dissenting); that “Arizona’s offense-based
procedure” thus “falls within a well-established framework that has been
used throughout the United States for many years,” id. at 218 ¶ 37, 377 P.3d
at 1013; and that Salerno did not impose a rigid three-part test but rather
“simply held that the Act’s procedures ‘suffice to repel a facial
[constitutional] challenge.’” Id. ¶ 39. As a result, according to the dissent,
“we cannot even say that Arizona’s no bond provisions are
unconstitutional as to one of the actual litigants before us, much less
unconstitutional in every conceivable application.” Id. at 220 ¶ 48, 337 P.3d
at 1015.

¶20           As a threshold matter, we conclude that the challenged
provisions are regulatory, not punitive, and therefore do not constitute a
per se due process violation. As with the Bail Reform Act in Salerno, 481
U.S. at 747, nothing surrounding Proposition 103’s adoption indicates that
the pretrial detention provisions were formulated to punish criminal
defendants. All ballot arguments supporting Proposition 103 focused on
protecting public safety by preventing additional crimes. See Ariz. Sec’y of
State,   2002     Publicity   Pamphlet     16–17     (2002),  available   at
http://apps.azsos.gov/election/2002/Info/pubpamphlet/english/prop1
03.pdf. “There is no doubt that preventing danger to the community is a
legitimate regulatory goal.” Salerno, 481 U.S. at 747.

¶21            We disagree with both the Ninth Circuit in Lopez-Valenzuela
and the court of appeals majority here that the three factors set forth in
Salerno are due process prerequisites for offense-specific pretrial detention
procedures. Rather, they were indicia reflecting the constitutionality of the
statute at issue in Salerno. See State v. Furgal, 13 A.3d 272, 278–79 (N.H. 2010)
(“The defendant conflates sufficient conditions with necessary ones. We do
not read Salerno to hold that all statutory bail schemes must include an
individualized inquiry into a defendant’s dangerousness in order to pass
constitutional muster.”). Indeed, the Court found that the Bail Reform Act’s
safeguards “are more exacting” and “far exceed” those found sufficient in
other contexts. Salerno, 481 U.S. at 752. Rather, it is clear from Salerno and
other decisions that the constitutionality of a pretrial detention scheme
                                       8
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

turns on whether particular procedures satisfy substantive due process
standards. See id. at 748–49 (listing cases in which pretrial detention was
upheld and acknowledging the “general rule” that “the government may
not detain a person prior to a judgment of guilt in a criminal trial,” but
noting that “these cases show a sufficient number of exceptions to the rule
that the congressional action challenged here can hardly be characterized
as totally novel”).

¶22             Some confusion exists over the level of scrutiny courts should
apply to mandatory detention laws. The United States Supreme Court has
characterized the right to be free from bodily restraint as “fundamental.”
See, e.g., Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Ordinarily, infringement
of fundamental rights triggers strict scrutiny, which requires that the
government demonstrate a compelling interest to which the restriction is
narrowly tailored. A challenged law “rarely survives such scrutiny.”
Burson v. Freeman, 504 U.S. 191, 200 (1992) (applying strict scrutiny in voting
rights context). But the Court has not consistently applied strict scrutiny to
infringement of fundamental rights. See, e.g., Foucha, 504 U.S. at 86
(requiring a “particularly convincing reason” for involuntary confinement);
Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982) (utilizing a balancing test
between interests of the state and “reasonable conditions of safety and
freedom from unreasonable restraints” and determining whether
professional judgment was exercised); see also Adam Winkler,
Fundamentally Wrong About Fundamental Rights, 23 Const. Comment. 227,
232 (2006) (observing that “strict scrutiny is only occasionally the applicable
standard” in the fundamental rights context).

¶23            We agree with the Ninth Circuit that Salerno applied
“heightened scrutiny” to the Bail Reform Act. Lopez-Valenzuela, 770 F.3d at
780. However, the standard the Ninth Circuit ultimately applied—whether
the bail restrictions are “narrowly tailored to serve a compelling interest,”
id. at 791—reflects strict scrutiny, the most exacting constitutional review
standard. See, e.g., Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2221
(2016). Salerno did not require this standard. Rather, it described the
government’s interest as “both legitimate and compelling,” and the act’s
provisions as “narrowly focuse[d] on a particularly acute problem.” 481
U.S. at 749–50. Indeed, the Court instructed that “the present statute
providing for pretrial detention on the basis of dangerousness must be
evaluated in precisely the same manner that we evaluated the laws” in the
prior cases it listed, id. at 749—none of which appear to have applied strict




                                       9
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

scrutiny. 1 Although the terms “legitimate and compelling” and “narrowly
focused” are not clearly defined terms of constitutional art, Salerno gives
them sufficient substance to guide our analysis. 2

¶24            The state’s objectives here satisfy the first part of the Salerno
test because “[t]he government’s interest in preventing crime by arrestees
is both legitimate and compelling.” 481 U.S. at 749. Likewise, the pretrial
detention “operates only on individuals who have been arrested for a
specific category of extremely serious offenses.” Id. at 750.

¶25           However, Salerno also examined whether the process at issue
was narrowly focused on accomplishing the government’s objective—in
that case (as here) preventing harm. In Salerno, that objective was served
by an individualized determination of dangerousness. As the Court held,
“When the Government proves by clear and convincing evidence that an
arrestee presents an identified and articulable threat to an individual or the
community, we believe that, consistent with the Due Process Clause, a court
may disable the arrestee from executing that threat.” Id. at 751.

¶26          Although we do not read Salerno or other decisions to require
such individualized determinations in every case, if the state chooses not to
provide such determinations, its procedure “would have to serve as a

1  See, e.g., Gerstein v. Pugh, 420 U.S. 103, 105 (1975) (finding judicial
determination of probable cause a prerequisite for pretrial detention under
the Fourth Amendment); Jackson v. Indiana, 406 U.S. 715, 717 (1972)
(applying rational basis to conclude that a committed person accused of a
criminal offense cannot be held more than a reasonable period of time
necessary to determine whether he will attain capacity); Greenwood v. United
States, 350 U.S. 366, 375 (1956) (finding under Necessary and Proper Clause
that civil commitment was acceptable); Ludecke v. Watkins, 335 U.S. 160, 161
(1948) (holding President’s power to remove enemy aliens judicially
unreviewable based on executive power in time of war).

2  Decisions subsequent to Salerno are context-specific, continuing the
Court’s case-by-case approach, and do not significantly illuminate the
applicable standard. See, e.g., Demore v. Kim, 538 U.S. 510, 530 (2003)
(upholding pretrial detention policy for deportable criminal aliens without
individual determinations of flight risk); Reno v. Flores, 507 U.S. 292, 302–03
(1993) (ruling that limited release policies for juvenile alien detainees do not
facially violate due process); Foucha, 504 U.S. at 83 (ruling that continued
commitment of insanity acquittee after conditions of insanity and
dangerousness have disappeared violates due process).
                                       10
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

convincing proxy for unmanageable flight risk or dangerousness.” Lopez-
Valenzuela, 770 F.3d at 786. Historically, capital offense charges have been
considered to present an inherent flight risk sufficient to justify bail denial.
See, e.g., id. Likewise, certain crimes (or circumstances under which crimes
are committed) may present such inherent risk of future dangerousness that
bail might appropriately be denied by proof evident or presumption great
that the defendant committed the crime. See Furgal, 13 A.3d at 279
(discussing long history of denying bail based on evidence of defendant’s
guilt in serious crimes).

¶27           The crime charged against Martinez, however, is not in itself
a proxy for dangerousness. Section 13-1405(A) states, “A person commits
sexual conduct with a minor by intentionally or knowingly engaging in
sexual intercourse or oral sexual contact with any person who is under
eighteen years of age.” Section 13-1405(B) classifies felonies for sexual
conduct with a minor under age fifteen but does not alter the definition of
the crime. The crime can be committed by a person of any age, and may be
consensual. Hence, as the court of appeals noted, Simpson, 240 Ariz. at 215
¶ 20, 377 P.3d at 1010, the offense sweeps in situations where teenagers
engage in consensual sex. In such instances, evident proof or presumption
great that the defendant committed the crime would suggest little or
nothing about the defendant’s danger to anyone. Cf. A.R.S. § 13-1406
(defining sexual assault as “intentionally or knowingly engaging in sexual
intercourse or oral sexual contact . . . without consent of such person”).

¶28            The challenged provisions also are not narrowly focused
given alternatives that would serve the state’s objective equally well at less
cost to individual liberty. Although we do not apply the strict scrutiny
standard requiring the state to show the absence of less-restrictive
alternatives to satisfy its objective, see Regents of Univ. of Cal. v. Bakke, 438
U.S. 265, 357 (1978) (Brennan, J., concurring in part and dissenting in part),
the presence of such alternatives demonstrates that the procedures are not
narrowly focused. See Foucha, 504 U.S. at 82.

¶29            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
                                       11
      SIMPSON/MARTINEZ V. HONS. MILLER/STEINLE (STATE)
                    Opinion of the Court

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.

¶30           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.

¶31           The State urges that we should not hold the challenged
provisions unconstitutional on their face because they may not be
unconstitutional in all instances. See, e.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.

                                   IV.
¶32 For the foregoing reasons, we reverse the trial court’s decision,
vacate the court of appeals’ opinion, and remand to the trial court for
further proceedings consistent with this opinion.




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