Arizona Supreme Court Strikes Down Sentence Enhancement for “Criminal Street Gang Member[s]”
From today’s unanimous Arizona Supreme Court decision in State v. Arevalo, written by Justice John R. Lopez IV:
A.R.S. § 13-1202(B)(2), which enhances the sentence [here, from a class 1 misdemeanor to a class 6 felony] for threatening or intimidating if the defendant is a criminal street gang member, is [un]constitutional … because it increases a criminal sentence based solely upon gang status in violation of substantive due process….
The charges against defendant Christopher Arevalo arise from two distinct cases. First, as alleged, on March 4, 2017, Arevalo entered a convenience store, was asked to leave by an employee who recognized him from prior shoplifting incidents, and grabbed a bag of peanuts and a soda without paying. As he was leaving, Arevalo gestured towards the employee and the store manager, mimicked holding a firearm, and vocalized gunfire noises. Arevalo did not mention any gang affiliation during the encounter.
The employee and manager later told the police they believed Arevalo was a criminal street gang member and felt threatened by his behavior. After his arrest, Arevalo told officers he stole the items and, when questioned about gang membership, admitted he was a gang member. He explained he was a member of a street gang in Los Angeles and that he began associating with a local gang after moving to Arizona. Arevalo was indicted for two counts of threatening or intimidating in violation of § 13-1202(B)(2).
Then, on April 14, 2017, Arevalo’s father called 911 after Arevalo became aggressive during a family dispute. When police arrived, Arevalo was hiding in a bedroom and told police to leave. Arevalo threatened one officer, vowing to “bash his head” if the officer entered the room. Several officers eventually entered the room, wherein Arevalo threatened them with a tire iron. Arevalo was arrested and charged with two counts of threatening or intimidating in violation of § 13-1202(B)(2)…. The State … did not allege a nexus between Arevalo’s charged conduct and his gang membership….
“[G]uilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity … that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause ….” Scales v. United States (1961).
In Scales, the defendant was charged under the Smith Act, which criminalized “the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence.” The indictment alleged that the defendant was a member of the Communist Party of the United States and had “knowledge of the Party’s illegal purpose and a specific intent” to overthrow the government. The defendant challenged the statute’s constitutionality, in part, on due process grounds because “it impermissibly impute[d] guilt to an individual merely on the basis of his associations a
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