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The Elements of Due Process

Clarity in Criminal Statutes: The Void–for–Vagueness Doctrine.— “Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law–abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”8 Acts which are made criminal “must be defined with appropriate definiteness.”9 “There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable tests to ascertain guilt.”10 Statutes which lack the requisite definiteness or specificity are commonly held “void for vagueness.” Such a statute may be pronounced wholly unconstitutional (unconstitutional “on its face”),11 or, if the statute could be applied to both prohibitable and to protected conduct and its valuable effects outweigh its potential general harm, it could be held unconstitutional as applied.12 Generally, a vague statute that regulates in the area of First Amendment guarantees will be pronounced wholly void,13 while one that does not reach such protected conduct will either be upheld because it is applied to clearly proscribable conduct, or voided as applied when the conduct is marginal and the proscription is unclear.14


The Court voided for vagueness a statute providing that any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who had been convicted at least three times of being a disorderly person, or who had been convicted of any crime in that or any other State, is to be considered a gangster and subject to fine or imprisonment. The Court observed that neither at the common law nor by statute are the words “gang” and “gangster” given definite meaning, that the enforcing agencies and courts were free to construe the terms broadly or narrowly, and that the phrase “known to be a member” was ambiguous. The statute was held void on its face, and the Court refused to allow specification of details in the particular indictment to save it because it was the statute, not the accusation, that prescribed the rule to govern conduct.15

Possibly concluding a controversy of long standing with regard to the validity of vagrancy laws as generally written,16 a unanimous Court in Papachristou v. City of Jacksonville17 struck down for vagueness an ordinance which punished “dissolute persons who go about begging, . . . common night walkers, . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, . . . persons neglecting all lawful business and habitually spending their time by frequenting house of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children. . . .” The ordinance was invalid, said Justice Douglas for the Court, because it did not give fair notice, did not require specific intent to commit an unlawful act, permitted and encouraged arbitrary and erratic arrests and convictions, committed too much discretion to policemen, and criminalized activities which by modern standards are normally innocent. Similarly, an ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers–by was impermissibly vague; because it encroached on the freedom of assembly it was void on its face.18 But an ordinance[p.1749]punishing “suspicious persons” was void only as applied to a person engaging in ambiguous conduct which it was possible to fit within the ordinance’s definition.19 A statute authorizing conviction for disorderly conduct of any person who refuses to move on upon police request and who is intent on causing inconvenience, annoyance, or alarm was upheld against facial challenge and as applied to one interfering with police ticketing of a car for valid reasons.20

Supplement: [P. 1749, add to text following n.20:]

A loitering statute which is triggered by failure to obey a police dispersal order may not, however, leave a police officer absolute discretion to give such orders.21 Thus, a Chicago ordinance, which required police to disperse all persons in the company of “criminal street gang members” while in a public place with “no apparent purpose,” failed to meet the “requirement that a legislature establish minimal guidelines to govern law enforcement.” 22 The Court noted that “no apparent purpose” is inherently subjective because its application depends on whether some purpose is “apparent” to the officer, who would presumably have the discretion to ignore such apparent purposes as engaging in idle conversation or enjoying the evening air.

A state statute imposing severe, cumulative punishments upon contractors with the State who pay their workmen less than the “current rate of per diem wages in the locality where the work is performed” was held to be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”21 Similarly, a statute which allowed jurors to require an acquitted defendant to pay the costs of the prosecution, elucidated only by the judge’s instruction to the jury that the defendant should only have to pay the costs if it thought him guilty of “some misconduct” though innocent of the crime with which he was charged, was found to fall short of the requirements of due process.22 But the Court sustained as neither too vague nor indefinite a state law which provided for commitment of a psychopathic personality by probate action akin to a lunacy proceeding and which had been construed by the state court as applying to those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inflict injury. The underlying conditions—habitual course of misconduct in sexual matters and lack of power to control impulses and likelihood of attack on others—were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal proceedings.23


8 Musser v. Utah, 333 U.S. 95, 97 (1948) . “Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) , quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982) .
9 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940) .
10 Winters v. New York, 333 U.S. 507, 515–16 (1948) . Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972) .
11 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) ; Smith v. Goguen, 415 U.S. 566 (1974) .
12 Palmer v. City of Euclid, 402 U.S. 544 (1971) ; Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 494–95 (1982) .
13 Winters v. New York, 333 U.S. 507, 509–10 (1948) ; Thornhill v. Alabama, 310 U.S. 88 (1940) .
14 E.g., United States v. National Dairy Corp., 372 U.S. 29 (1963) .
15 Lanzetta v. New Jersey, 306 U.S. 451 (1939) ; Edelman v. California, 344 U.S. 357 (1953) .
16 E.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Justice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice Douglas dissenting).
17 405 U.S. 156 (1972) .
18 Coates v. City of Cincinnati, 402 U.S. 611 (1971) . See also Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) . Bouie v. City of Columbia, 378 U.S. 347 (1964) , voided conviction on trespass charges arising out of a sit–in at a drugstore lunch counter since the trespass statute did not give fair notice that it was a crime to refuse to leave private premises after being requested to do so. And see Kolender v. Lawson, 461 U.S. 352 (1983) (requirement that person detained in valid Terry stop provide “credible and reliable” identification is facially void as encouraging arbitrary enforcement).
19 Palmer v. City of Euclid, 402 U.S. 544 (1971) .
20 Colten v. Kentucky, 407 U.S. 104 (1972) .
21 Connally v. General Construction Co., 269 U.S. 385 (1926) .
22 Giaccio v. Pennsylvania, 382 U.S. 399 (1966) .
23 Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940) .

Supplement Footnotes

21 Kolender v. Lawson, 461 U.S. 352, 358 (1983) .
22 City of Chicago v. Morales, 527 U.S. 41 (1999) .
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