Arizona Supreme Court Strikes Down Sentence Enhancement for "Criminal Street Gang Member[s]"

The statute, which upgraded threatening or intimidating from a misdemeanor to a felony "if the defendant is a criminal street gang member" (regardless of whether the crime is connected to gang membership), the court held, violates substantive due process.


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 and sympathies, rather than because of some concrete personal involvement in criminal conduct."

The Court distilled the constitutional inquiry to "an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability." In the context of the Smith Act's criminalization of Communist Party membership, the Court reasoned that due process is satisfied only if the statute was applied to " 'active' members" who have a "guilty knowledge and intent." The Court declined to recognize "[m]embership, without more, in an organization engaged in illegal advocacy," as a sufficient nexus between association and criminal activity to satisfy the concept of personal guilt under the due process clause.

We extract from Scales the principle that due process allows criminalization of membership in an organization only if such status has a sufficient connection, or nexus, to the underlying criminal conduct. We also import Scales' qualitative standard, even though it predates the three-tiered scrutiny level analysis the Supreme Court later adopted, because the relationship between associational membership and the underlying criminal conduct "must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause." … [W]e conclude that § 13-1202(B)(2) fails even rational basis review—and therefore we need not analyze whether the statute meets strict or intermediate scrutiny—because it does not require a nexus between threatening or intimidating and gang membership….

The State argues that "the increased risk of violence when threats or intimidation [are] done by a gang member, versus a non-gang member … is the nexus the Court of Appeals referenced when it concluded [§] 13-1202(B)(2) does not penalize mere membership in a street gang." The State reasons that there only "needs to be a relationship between the gang status and the crime of threatening and intimidating that is sufficient to permit gang membership's use as the basis of criminal liability," rather than a direct correlation between an individual's gang membership and the purpose of his actual threats. We disagree.

Although a gang member's proclamation of membership, when it accompanies the crime of threatening or intimidating, might provide a sufficient nexus between membership and the crime to justify enhanced punishment, a theoretical or abstract connection between the two fails to satisfy Scales' due process standard because "the relationship between the fact of membership and the underlying substantive illegal conduct" must be sufficiently substantial to warrant punishment. A non-gang member's threat is indistinguishable from that of a gang member if the threat is not bolstered—or connected—by gang membership. The flaw in the State's argument is that it sanctions what due process forbids—punishment based solely on associational status….

An example is illustrative. Assume a teenager is, unbeknownst to his mother, a gang member. In the midst of a domestic disturbance, he threatens to strike his mother and is subsequently charged with threatening or intimidating. Under the State's argument and the court of appeals' reasoning, the defendant would be subject to a (B)(2) sentencing enhancement for gang membership even though his mother was unaware of his affiliation, he never invoked it to bolster his threat, and the crime was altogether unrelated to his gang activity. And even if the mother knew of her son's gang membership, the State would not have to prove that knowledge or otherwise relate his membership to the offense to invoke (B)(2)'s enhancement.

{It may be true that the policy animating (B)(2)'s enactment is to confront what is presumed to be "the added menace inflicted when a criminal street gang member is engaged in criminal conduct," but the statute's text [does not require evidence of such menace]—it penalizes mere membership in a criminal street gang.} By its terms, § 13-1202(B)(2) permits sentencing enhancement absent any nexus between gang membership and the crime. The absence of a nexus requirement between gang status and the crime of threatening or intimidating renders the statute facially invalid ….

The statute in Scales criminalized organizational membership whereas § 13-1202(B)(2) enhances a sentence, based on gang membership, for an underlying personal crime. But, as the State conceded at argument, this distinction is immaterial. Scales' "personal guilt" or "nexus" due process requirement applies with equal force to substantive offenses and sentencing enhancements….

The statutory structure of § 13-1202 further dispels the notion that (B)(2) serves any purpose other than to enhance punishment based solely on gang status. Section 13-1202(A)(3) provides: "A person commits threatening or intimidating if the person threatens or intimidates by word or conduct: … [t]o cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a criminal street gang …." A violation of (A)(3) is a class 3 felony pursuant to § 13-1202(C).

Section (A)(3) evinces the legislature's intent to justify an enhanced sentence for threatening or intimidating when a sufficient nexus exists between a defendant's gang membership and the underlying crime. By contrast, other than its impermissible purpose to penalize mere gang membership, any constitutional application of (B)(2) would render the provision superfluous because a violation of (A)(3) would, in most instances, subsume it.

We note that courts in other jurisdictions have held similar statutes unconstitutional as violative of due process if they penalize gang membership without requiring a nexus between gang status and the underlying crime…. In O.C., the Florida Supreme Court invalidated a statute that enhanced penalties "[u]pon a finding by the court at sentencing that the defendant is a member of a criminal street gang" because the statute did not require a nexus and lacked a " 'reasonable and substantial relation' to a permissible legislative objective."

Similarly, in Bonds, the Tennessee Court of Criminal Appeals examined a statute that stated, in relevant part, that "[a] criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed." The defendants challenged the statute as a violation of substantive due process because it "lack[ed] a nexus between gang membership and criminal conduct." The court held the subsection unconstitutional as it was "completely devoid of language requiring that the underlying offense be somehow gang-related." Consequently, like § 13-1202(B)(2), the statute impermissibly enhanced the defendant's punishment solely for his association with a gang….

I'm skeptical of the court's conclusion that the statute "fails even rational basis review"; that famously forgiving standard, under which statutes must be upheld if there is "any conceivable rational basis" to believe they "further a legitimate governmental interest," seems amply satisfied here. For instance, the law can be rationally believed to further a legitimate governmental interest in deterring street gang membership.

Likewise, it can be rationally believed to further a legitimate governmental interest in especially punishing crimes that are especially threatening or intimidating, because people who know the criminal is a street gang member may be especially frightened (and especially reluctant to call the police). To be sure, the law may be overinclusive to that interest, because the law applies even to defendants whom the victims don't suspect of being gang members; but overinclusiveness is generally not enough to invalidate a statute under the rational basis test. I think it would have been better for the court to acknowledge that it was applying more demanding review than the traditional "rational basis review" (Scales does suggest that more demanding review is called for), and to explain why the statute failed that review.

The statute, by the way, defined "criminal street gang" to essentially mean "an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act."

NEXT: Arizona Supreme Court Justice Clint Bolick, Writing Against the "Presumption of Constitutionality"

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  1. Professor Volokh, is this really a due process issue? It seems a 1st A issue to me. It criminalizes the same speech, and that speech can be criminalized, but the law still favors one speaker over another by it being a more lenient punishment.

    Perhaps I am incorrect, and I would welcome correction if so, but if they only criminalized the speech for certain speakers that is well understood as unconstitutional. Is there a reason the same would hold just be it criminalizes it for all, but not to the same degree?

    1. I’m not sure I follow. There’s no rule that requires people who get convicted of the same crime to receive the same punishment, and to the extent there’s a prohibition on certain types of disparate treatments, it doesn’t flow from the first amendment.

      1. It is a first amendment violation to allow speech by one or more groups of people, but not allow that same speech from everyone. See e.g. Sorrell v IMS Health. Why would it change if it simply doesn’t allow it from everyone but gives harsher penalties to someone based on who was speaking? That is still discrimination based on the speaker.

        1. Because, as you note, the speech at issue isn’t protected by the First Amendment.

          1. But we are talking speaker discrimination. That wouldn’t even exist as a category unless they were prohibiting speech that could be prohibited but not doing so for everyone. They can prohibit it but they must do so in a speaker neutral way.
            “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.” – Citizens United

        2. And if he had instead uttered a racial slur while leaving the store with stolen property?

          Were he White and in Massachusetts, that’d be a hate crime….

    2. Even simpler, how is this different from hate crime enhancements?

      1. Hate crime enhancements involve showing a particular connection between the defendant’s intent and the actual crime. It’s not enough to simply show that the defendant was generally hateful.

        1. Right. And he didn’t shoplift because he was generally larcenous, but because he was a gang banger.

          1. Yes, Dr Ed, that’s what the prosecution would have to show – and didn’t.

    1. What about it?

    2. Do you think RICO criminalizes association or status like this does?

      1. For some reason ‘just being in a gang’ is an issue and its supposedly so awful and unethical that its ever a factor under any consideration when it comes to deciding which crimes and punishments to go for here but RICO is all about ‘being in a gang’. Just throwing it out there.

        1. RICO was created as a tool to combat gangs, but the actual elements of the crime are not “all about ‘being in a gang.””

      2. RICO criminalizes conspiracies to commit certain kinds of crimes arising out of criminal enterprises. Conspiracies in turn require, typically, an agreement among two or more persons to commit a criminal act, and an overt act made pursuant to that conspiracy by one or more of its members.

        That’s more than association or status.

        1. That’s not quite right. The RICO statute, 18 U.S.C. §  1961, criminalizes various ways of participating in or profiting from a racketeering enterprise. It also criminalizes conspiring to violate the RICO statute, although (like most federal conspiracies), it does not require an overt act.

  2. I hate hate hate substantive due process, which is code for “making stuff up that’s really important to us and pretending it’s in the Constitution.”

    But I would have thought this sort of sentencing enhancement unconstitutional under some combination of equal protection, right to association, and overbreadth/vagueness analysis.

    1. You shouldn’t hate substantive due process. You can hate particular doctrines within it, but the notion that there are some things that are so outrageous that the government may not do them no matter what process is afforded shouldn’t be controversial.

      1. It’s not, but I don’t think it makes a lot of sense to characterize that concept as a violation of a person’s due process rights, as opposed to a violation of the substantive guarantee to be free from that kind of misconduct.

      2. … the notion that there are some things that are so outrageous that the government may not do them no matter what process is afforded shouldn’t be controversial.

        That’s due process. It comes from enumerated rights created in the U.S. Constitution, state constitutions, and the national and state legislators. “Substantive due process” refers to a judicial doctrine in which, as I said, the author thereof makes stuff up and pretends its in the Constitution — typically with lyrical prose about sweet mysteries of life rather than reference to, you know, the actual Constitution.

        So yes, I hate hate hate substantive due process.

        1. … the national and state legislators.

          That should have read “legislatures.” Mea culpa.

    2. And hate crime enhancements aren’t?

      1. And hate crime enhancements aren’t?

        I am in a minority which believes that those are almost always bad policy and, in some instances at least, unconstitutional as well.

    3. It’s interesting to note that Justice Thomas believes that vagueness/overbreadth are parts of substantive due process and courts shouldn’t follow them either.

  3. “an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act.”

    The Arizona FOP should feel less threatened now.

    1. That definition applies to most associations of a hundred people or more, and also to many smaller ones, whose members haven’t seen much of the street in a long time (e.g. Trump’s campaign organization).

  4. _Virginia v. Black, 538 U.S. 343 (2003)_

    As long as you aren’t in a drought, how is burning a cross different from making gang signs? Both are symbolic speech. Both are intended to intimidate others. And in both cases, the state has the right to prevent such intimidation.

    1. This case has nothing to do with making gang signs, and you misunderstand Virginia v. Black.

  5. It strikes me to be more of a First Amendment question then due process. Can the government further punish you just because of an affiliation that has no linkage or connection to the crime that was committed? I would think the answer is a simple “no” without much explanation necessary.

    1. But wouldn’t that also include Klan membership?

      1. Do you think membership in the Klan is in and of itself illegal?

        1. I think it would include any associational membership that can’t be linked to a particular crime.

    2. I give you every “hate crime” statute ever enacted – – – – – – – –

      1. Hate crime laws may or may not be good policy, but they’re nowhere near imposing on speech or association.

  6. The statute, by the way, defined “criminal street gang” to essentially mean “an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act.”

    So imagine that poor Justice Kavanaugh, still justifiably enraged at his treatment before the Senate over more than a decade, goes postal with an assault rifle in Chuck Schumer’s office. The Justice is part of a formal association of persons, and he also, individually (presuming he didn’t tip off Justice Gorsuch), has committed a felony act. Is the SCOTUS not therefore, in this hypothetical and this definition, instantly transformed into a criminal street gang?

    1. It’s a governmental entity. Not an artificial person.

      1. @ Dr. Ed 2: The statute talks of neither governmental entities nor artificial persons, whatever you mean by that. (Androids? Corporations?) The Supreme Court of the United States, however, is definitely a formal association of persons — and vastly more clearly defined than, say, the Bloods and the Crips, colors and prison tattoos aside. (I don’t recall if Justice Kavanaugh was asked if he has any hidden gang tattoos.)

    2. Is the SCOTUS not therefore, in this hypothetical and this definition, instantly transformed into a criminal street gang?

      I suppose if so indicted, the Notorious RBG would defend on grounds that the formal association of persons to which she and Justice Kavanaugh belong was not one “in which” Justice Kavanaugh’s felony act took place. But that “in which” would then be carrying a awful lot of constitutional freight, as a legislative drafting shortcut which completely sidesteps a whole range of other questions, like “What showing has there been that this felony related at all to the association’s purposes, goals, or past conduct?” and “To what extent if any was it foreseeable to the other members of the association that Justice Kavanaugh might so act?”

      Nope, this is too vague to be remotely enforceable IMHO.

  7. “…The statute, by the way, defined “criminal street gang” to essentially mean “an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act.”

    Seems like a really broad definition. Covers a lot of people where most observers would not think of gang membership. (*cough* Trump administration *cough*) It would seem that pretty much everyone accused of a conspiracy would, by this definition, also be allegedly a member of a gang.

    1. I think most people think of the mafia when they think of the Trump Administration, but yeah.

  8. So which groups would this statute affect?

    LA Street Gangs
    Boys Scouts
    Catholic Church
    Members of Epstein’s little black book

    1. All groups. Also all families.

      1. Only groups and families that happen to include at least one criminal. That would include almost all unions with more than about 50 members, every legislature, every major political party, most city councils, most college sports teams that play on television, and most church congregations, but definitely not every family.

  9. I am confused. Why is this a free speech issue and not a free association issue?

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