Guilty by Affiliation?

By Brianna Pachuilo.

Introduction

The Arizona Supreme Court recently decided in State v. Arevalo that an Arizona statute that increases criminal penalties based upon gang affiliation is unconstitutional. While many states have statutes that heighten charges for crimes committed to support gang activity, the Arizona statute increased the penalty for threatening and intimidation by virtue of simply being a gang member.

The Statute

The Arizona criminal statute for threatening or intimidating is A.R.S. § 13-1202. According to the statue being a “criminal street gang member” upgrades the offense from a class 1 misdemeanor to a class 6 felony. Although a class 6 felony is the least serious felony offense, there are still significant differences between being charged with a felony and misdemeanor. First, the baseline sentence for a class 6 felony is one year in prison and two years for an aggravated offense. In contrast, class 1 misdemeanors have a maximum sentence of six months in prison. Not only is the sentencing increased for felony convictions, but the felony label also carries a heavy stigma. A person who has a felony conviction on their record will have permanent difficulties obtaining a job, housing, and loans. A felony conviction is life-altering for a defendant and, as such, is not a conviction to be given carelessly.

“US Constitution” by Jonathan Thorne CC is licensed with CC BY-NC 2.0.

The Decision

On September 1, 2020, the Arizona Supreme Court unanimously decided that the gang enhancement portion of A.R.S. § 13-1202 is unconstitutional.In State v. Arevalo, the charges against the defendant arose from two separate incidents. First, the defendant stole peanuts and a soda from a convenience store and mimicked shooting a gun with his hands as he exited. Second, the defendant threatened police officers when they were called in response to a family dispute. The employee and manager at the store told officers that they believed the defendant was part of a street gang. After being arrested, the defendant admitted he was associated with a local gang in Arizona. It is important to note that the defendant did not commit either of these actions in relation to his gang membership or even mention his gang membership during the offenses.

The Court determined that increasing the conviction on the basis of gang affiliations alone is a violation of the Due Process Clause. In their reasoning, the court relied on the United States Supreme Court case Scales v. United States. In this case, the. Supreme Court set the rule that a person cannot be convicted based upon their status alone. There must be some relationship between the membership and the illegal conduct. In applying this rule, the Arizona Supreme Court determined that A.R.S. § 13-1202(B)(2) currently allows for punishment based upon a defendant’s status as a gang member, without any showing that the membership contributed to or aggravated the threatening act. Because the crime is not required to have any relation to the gang membership, it is punishment based on status alone and a violation of the due process clause.

Additionally, the court recognized that the incredibly broad legislative definition of a “criminal street gang” creates danger of over application. A.R.S. 13-2321 defines a criminal street gang as “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 and that has at least one individual who is a criminal street gang member.”

The court did note that an increased offense would be permissible if the threats were related to the gang affiliation. However, it seems that this concept is already included in the statute under subsection (A)(3) that codifies threatening “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 criminal syndicate or a racketeering enterprise.” In this scenario the defendant is charged as a class 3 felony. This portion of the statute appears to sufficiently cover the state’s interest in reducing crimes associated with gang participation and increasing criminal charges for dangerous gang activity. As the Arizona Supreme Court acknowledged, this provision also solidifies the idea that A.R.S. § 13-1202(B)(2) punished gang affiliation in itself without connection to the crime, because the statute already incorporates a heighten conviction for gang activity.

The Arizona Supreme Court is not alone in finding that this type of gang sentencing enhancement violates a defendant’s constitutional rights. The Florida Supreme Court and Tennessee Court of Criminal Appeals have also determined that statutes increasing criminal conviction based upon gang membership without relation to the criminal offense violate Due Process.

Conclusion.
Although this case was adjudicated under the Arizona State Constitution, a claim against state gang enhancement laws could likely be brought under the Due Process Clause of the United States Constitution. This leaves the issue open for interpretation by the federal courts for similar gang enhancement statutes.

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By Brianna Pachuilo.

J.D. Candidate, 2022.

Brianna is a 2L staff writer from Phoenix, AZ. She earned her Bachelors degree in Sociology from Grand Canyon University. During her first year, she was an International Rule of Law and Security fellow and is a now a student clinician for the Post Conviction Clinic. In her free time Bri enjoys rock climbing, experimenting with recipes, and playing with her Boston Terrier puppy.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.