On Tuesday, the Arizona Supreme Court struck down an Arizona law, which upgraded threatening or intimidating from a misdemeanor to a felony “if the defendant is a criminal street gang member.” The court found that the law violates substantive due process.
The justices ruled unanimously that the law violates an individual’s due process rights “because it enhances criminal penalties based solely on gang status without a sufficient nexus between gang membership and the underlying crime of threatening or intimidating.”
“Indeed, it permits sentencing enhancement based on gang status even if the crime is wholly unrelated to a defendant’s gang membership,” wrote Justice John R. Lopez IV for the Court. “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. By its terms, § 13-1202(B)(2) permits sentencing enhancement absent any nexus between gang membership and the crime.”
The justices’ ruling vacates a Court of Appeals decision, and affirms a Maricopa County Superior Court judge’s decision in cases involving Christopher Arevalo. Arevalo, in 2017, allegedly threatened convenience store employees by pretending he had a gun. A month later Arevalo threatened police officers.