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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.

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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."