Justices strike down enhanced sentencing law for gang ties

By: - September 1, 2020 3:07 pm

Photo by Jerod MacDonald-Evoy | Arizona Mirror

Judges and prosecutors cannot impose harsher sentences on gang members who threaten others unless there’s a connection between the crime and the defendant’s membership in a gang, the Arizona Supreme Court ruled.

In a unanimous opinion on Tuesday, the court’s seven justices struck down as unconstitutional a state law that enhances criminal sentences for gang members who threaten or intimidate people, ruling that the statute violates defendants’ due process rights under the Fourteenth Amendment to the U.S. Constitution. For such an enhanced sentence to be constitutional, the justices ruled, there must be a connection between the threats and the threats made by a defendant.

The ruling stemmed from two cases against a 31-year-old man named Christopher Arevalo. Maricopa County prosecutors alleged that Arevalo stole a bag of peanuts and a soda from a convenience store in 2017, and, as he left, mimicked pointing a firearm at an employee and made shooting noises. About a month later in a separate case, Arevalo was accused of threatening police officers who came to his home in response to a domestic dispute. 

Because Arevalo admitted after the first arrest that he was a member of a street gang, prosecutors charged him with class 6 felonies instead of class 1 misdemeanors for the threats he made. 

In a pretrial ruling, a trial court judge ruled that the law was unconstitutional and dismissed the threatening charges against Arevalo. The Arizona Court of Appeals later overturned that ruling.

Arevalo hasn’t been convicted of making threats in either incident and his cases have not yet gone to trial.

Justice John Lopez, who authored the high court’s opinion, wrote that membership in a gang isn’t a sufficient reason to enhance a defendant’s sentence unless there’s a specific nexus between the threats and the gang membership.

“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,” Lopez wrote. “The flaw in the (prosecutors’) argument is that it sanctions what due process forbids — punishment based solely on associational status.”

For example, Lopez proffered the example of a teenager who was a gang member, unbeknownst to his mother. If the teen were to threaten to hit his mother during an argument, state law would permit an enhanced sentence for him, even if the crime was unrelated to his membership in a gang and his mother wasn’t even aware that he was in a gang.

The lack of a connection between gang membership and the crime committed means that the enhanced sentencing law is unconstitutional on its face and cannot be remedied, Lopez wrote.

“We cannot, and will not, rewrite the statute to save it,” Lopez said.

Pima County public defender David Euchner, who wrote an amicus brief supporting Arevalo in the case, said the Supreme Court reached the right conclusion.

“What makes this so important is that due process requires that we punish conduct, not thoughts or speech or association,” Euchner said.

Euchner noted, as Lopez did in his ruling, that a separate state law allows for enhanced sentences for people who make threats to “further or assist in the interests” of a criminal street gang.

The Maricopa County Attorney’s Office, which argued in favor of the enhanced sentencing statute, and the Maricopa County Public Defender’s Office, which represented Arevalo and argued the case, declined to comment on the ruling. 

Justice Bill Montgomery recused himself and was replaced by retired Justice John Pelander. Montgomery is the former Maricopa County attorney, a position he held at the time Arevalo was charged.

The seven justices unanimously agreed that the statute was unconstitutional, but Justice Clint Bolick went a bit further in a concurring opinion. In the opinion, which Pelander joined, Bolick argued that the court should reject the legal principle that an act of the legislature is presumed to be constitutional, which Lopez cited.

Bolick said the presumption of constitutionality “sends an unmistakable message to Arizonans that they face a judicially manufactured uphill battle any time they challenge an infringement of their rights.”

“Although this presumption is deeply rooted in our jurisprudence, it is antithetical to the most fundamental of ideals: that our constitutions are intended primarily not to shelter government power, but to protect individual liberty,” Bolick wrote.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”