Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.

Criminal statutes that lack sufficient definiteness or speci-ficity are commonly held “void for vagueness.”1086 Such 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.”1087 “Men of common intelligence cannot be required to guess at the meaning of [an] enactment.”1088 In other situations, a statute may be unconstitutionally vague because the statute is worded in a standardless way that invites arbitrary enforcement. In this vein, the Court has invalidated two kinds of laws as “void for vagueness”: (1) laws that define criminal offenses; and (2) laws that fix the permissible sentences for criminal offenses.1089 With respect to laws that define criminal offenses, the Court has required that a penal statute provide the definition of the offense with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”1090

For instance, the Court voided for vagueness a criminal statute providing that a person was a “gangster” and subject to fine or imprisonment if he was without lawful employment, had been either convicted at least three times for disorderly conduct or had been convicted of any other crime, and was “known to be a member of a gang of two or more persons.” The Court observed that neither common law nor the statute gave the words “gang” or “gangster” 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, and the Court refused to allow specification of details in the particular indictment to save it because it was the statute, not the indictment, that prescribed the rules to govern conduct.1091

A statute may be so vague or so threatening to constitutionally protected activity that it can be pronounced wholly unconstitutional; in other words, “unconstitutional on its face.”1092 Thus, for instance, a unanimous Court in Papachristou v. City of Jacksonville1093 struck down as invalid on its face a vagrancy ordinance that 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 . . . .”1094 The ordinance was found to be facially invalid, according to Justice Douglas for the Court, because it did not give fair notice, it did not require specific intent to commit an unlawful act, it permitted and encouraged arbitrary and erratic arrests and convictions, it committed too much discretion to policemen, and it criminalized activities that by modern standards are normally innocent.1095

In FCC v. Fox, 567 U.S. ___, No. 10–1293, slip op. (2012) the Court held that the Federal Communiations Commission (FCC) had violated the Fifth Amendment due process rights of Fox Television and ABC, Inc., because the FCC had not given fair notice that broadcasting isolated instances of expletives or brief nudity could lead to punishment. 18 U.S.C. § 1464 bans the broadcast of “any obscene, indecent, or profane language”, but the FCC had a long-standing policy that it would not consider “fleeting” instances of indecency to be actionable, and had confirmed such a policy by issuance of an industry guidance. The policy was not announced until after the instances at issues in this case (two concerned isolated utterances of expletives during two live broadcasts aired by Fox Television, and a brief exposure of the nude buttocks of an adult female character by ABC). The Commission policy in place at the time of the broadcasts, therefore, gave the broadcasters no notice that a fleeting instance of indecency could be actionable as indecent.

On the other hand, some less vague statutes may be held unconstitutional only in application to the defendant before the Court.1096 For instance, where the terms of a statute could be applied both to innocent or protected conduct (such as free speech) and unprotected conduct, but the valuable effects of the law outweigh its potential general harm, such a statute will be held unconstitutional only as applied.1097 Thus, in Palmer v. City of Euclid,1098 an ordinance punishing “suspicious persons” defined as “[a]ny person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself ” was found void only as applied to a particular defendant. In Palmer, the Court found that the defendant, having dropped off a passenger and begun talking into a two-way radio, was engaging in conduct which could not reasonably be anticipated as fitting within the “without any visible or lawful business” portion of the ordinance’s definition.

Loitering statutes that are triggered by failure to obey a police dispersal order are suspect, and may be struck down if they leave a police officer absolute discretion to give such orders.1099 Thus, a Chicago ordinance that 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.”1100 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.1101 On the other hand, where such a statute additionally required a finding that the defendant was intent on causing inconvenience, annoyance, or alarm, it was upheld against facial challenge, at least as applied to a defendant who was interfering with the ticketing of a car by the police.1102

Statutes with vague standards may nonetheless be upheld if the text of statute is interpreted by a court with sufficient clarity.1103 Thus, the civil commitment of persons of “such conditions of emotional instability . . . as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons” was upheld by the Court, based on a state court’s construction of the statute as only applying to 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.1104

Conceptually related to the problem of definiteness in criminal statutes is the problem of notice. Ordinarily, it can be said that ignorance of the law affords no excuse, or, in other instances, that the nature of the subject matter or conduct may be sufficient to alert one that there are laws which must be observed.1105 On occasion the Court has even approved otherwise vague statutes because the statute forbade only “willful” violations, which the Court construed as requiring knowledge of the illegal nature of the proscribed conduct.1106 Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty without notice.1107

The question of notice has also arisen in the context of “judge-made” law. Although the Ex Post Facto Clause forbids retroactive application of state and federal criminal laws, no such explicit restriction applies to the courts. Thus, when a state court abrogated the common law rule that a victim must die within a “year and a day” in order for homicide charges to be brought in Rogers v. Tennessee,1108 the question arose whether such rule could be applied to acts occurring before the court’s decision. The dissent argued vigorously that unlike the traditional common law practice of adapting legal principles to fit new fact situations, the court’s decision was an outright reversal of existing law. Under this reasoning, the new “law” could not be applied retrospectively. The majority held, however, that only those holdings which were “unexpected and indefensible by reference to the law which had been express prior to the conduct in issue”1109 could not be applied retroactively. The relatively archaic nature of “year and a day rule”, its abandonment by most jurisdictions, and its inapplicability to modern times were all cited as reasons that the defendant had fair warning of the possible abrogation of the common law rule.

With regard to statutes that fix criminal sentences,1110 the Court has explained that the law must specify the range of available sentences with “sufficient clarity.”1111 For example, in Johnson v. United States, after years of litigation on the meaning and scope of the “residual clause” of the Armed Career Criminal Act of 1984 (ACCA),1112 the Court concluded that the clause in question was void for vagueness.1113 In relevant part, the ACCA imposes an increased prison term upon a felon who is in possession of a firearm, if that felon has previously been convicted for a “violent felony,” a term defined by the statute to include “burglary, arson, or extortion, [a crime that] involves use of explosives, or” crimes that fall within the residual clause—that is, crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”1114 In Johnson, prosecutors sought an enhanced sentence for a felon found in possession of a firearm, arguing that one of the defendant’s previous crimes—unlawful possession of a short-barreled shotgun— qualified as a violent felony because the crime amounted to one that “involve[d] conduct that presents a serious potential risk of physical injury to another.”1115 To determine whether a crime falls within the residual clause, the Court had previously endorsed a “categorical approach”—that is, instead of looking to whether the facts of a specific offense presented a serious risk of physical injury to another, the Supreme Court had interpreted the ACCA to require courts to look to whether the underlying crime falls within a category such that the “ordinary case” of the crime would present a serious risk of physical injury.1116 The Court in Johnson concluded that the residual clause was unconstitutionally vague because the clause’s requirement that courts determine what an “ordinary case” of a crime entails led to “grave uncertainty” about (1) how to estimate the risk posed by the crime and (2) how much risk was sufficient to qualify as a violent felony.1117 For example, in determining whether attempted burglary ordinarily posed serious risks of physical injury, the Court suggested that reasonable minds could differ as to whether an attempted burglary would typically end in a violent encounter, resulting in the conclusion that the residual clause provided “no reliable way” to determine what crimes fell within its scope.1118 In so holding, the Court relied heavily on the difficulties that federal courts (including the Supreme Court) have had in establishing consistent standards to adjudge the scope of the residual clause, noting that the failure of “persistent efforts” to establish a standard can provide evidence of vagueness.1119

Footnotes

1086
Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). [Back to text]
1087
Musser v. Utah, 333 U.S. 95, 97 (1948). “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.” Id. at 97. “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). [Back to text]
1088
Winters v. New York, 333 U.S. 507, 515–16 (1948). “The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable test to ascertain guilt.” Id. Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972). Thus, a state statute imposing severe, cumulative punishments upon contractors with the state who pay their workers 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.” Connally v. General Const. Co., 269 U.S. 385 (1926). 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. Giaccio v. Pennsylvania, 382 U.S. 399 (1966). [Back to text]
1089
See United States v. Beckles, 580 U.S. ___, No. 15–8544, slip op. at 5 (2017). [Back to text]
1090
See Kolender v. Lawson, 461 U.S. 352, 357 (1983). [Back to text]
1091
Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S. 357 (1953). [Back to text]
1092
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974). Generally, a vague statute that regulates in the area of First Amendment guarantees will be pronounced wholly void. Winters v. New York, 333 U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940). [Back to text]
1093
405 U.S. 156 (1972). [Back to text]
1094
405 U.S. at 156 n.1. Similar concerns regarding vagrancy laws had been expressed previously. See, 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). [Back to text]
1095
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 found impermissibly vague and void on its face because it encroached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 (1971). See Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (conviction under statute imposing penalty for failure to “move on” voided); Bouie v. City of Columbia, 378 U.S. 347 (1964) (conviction on trespass charges arising out of a sit-in at a drugstore lunch counter voided 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); 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). [Back to text]
1096
Where the terms of a vague statute do not threaten a constitutionally protected right, and where the conduct at issue in a particular case is clearly proscribed, then a due process challenge is unlikely to be successful. Where the conduct in question is at the margins of the meaning of an unclear statute, however, it will be struck down as applied. E.g., United States v. National Dairy Corp., 372 U.S. 29 (1963). [Back to text]
1097
Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 494–95 (1982). [Back to text]
1098
402 U.S. 544 (1971). [Back to text]
1099
Kolender v. Lawson, 461 U.S. 352, 358 (1983). [Back to text]
1100
City of Chicago v. Morales, 527 U.S. 41 (1999). [Back to text]
1101
527 U.S. at 62. [Back to text]
1102
Colten v. Kentucky, 407 U.S. 104 (1972). [Back to text]
1103
See, e.g., McDonnell v. United States, 579 U.S. ___, No. 15–474, slip op. at 23 (2016) (narrowly interpreting the term “official act” to avoid a construction of the Hobbs Act and federal honest-services fraud statute that would allow public officials to be subject to prosecution without fair notice “for the most prosaic interactions” between officials and their constituents). [Back to text]
1104
Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940). [Back to text]
1105
E.g., United States v. Freed, 401 U.S. 601 (1971). Persons may be bound by a novel application of a statute, not supported by Supreme Court or other “fundamentally similar” case precedent, so long as the court can find that, under the circumstance, “unlawfulness . . . is apparent” to the defendant. United States v. Lanier, 520 U.S. 259, 271–72 (1997). [Back to text]
1106
E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952); Colautti v. Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v. United States, 325 U.S. 91, 101–03 (1945) (plurality opinion). The Court have even done so when the statute did not explicitly include such a mens rea requirement. E.g., Morissette v. United States, 342 U.S. 246 (1952). [Back to text]
1107
See, e.g., Lambert v. California, 355 U.S. 225 (1957) (invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to remain in the city for more than five days without registering.). In Lambert, the Court emphasized that the act of being in the city was not itself blameworthy, holding that the failure to register was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” “Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Id. at 228, 229–30. [Back to text]
1108
532 U.S. 451 (2001). [Back to text]
1109
Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). [Back to text]
1110
In United States v. Beckles, the Supreme Court concluded that the federal sentencing guidelines “do not fix the permissible range of sentences” and, therefore, are not subject to a vagueness challenge under the Due Process Clause. See 580 U.S. ___, No. 15–8544, slip op. at 5 (2017). Rather, the sentencing guidelines “merely guide the district courts’ discretion.” Id. at 8. In so concluding, the Court noted that the sentencing system that predated the use of the guidelines gave nearly unfettered discretion to judges in sentencing, and that discretion was never viewed as raising similar concerns. Id. Thus, the Court reasoned that it was “difficult to see how the present system of guided discretion” could raise vagueness concerns. Id. Moreover, the Beckles Court explained that “the advisory Guidelines . . . do not implicate the twin concerns underlying [the] vagueness doctrine—providing notice and preventing arbitrary enforcement.” Id. According to the Court, the only notice that is required regarding criminal sentences is provided to the defendant by the applicable statutory range and the guidelines. Further, the guidelines, which serve to advise courts how to exercise their discretion within the bounds set by Congress, simply do not regulate any conduct that can be arbitrarily enforced against a criminal defendant. Id. at 9. [Back to text]
1111
See United States v. Batchelder, 442 U.S. 114, 123 (1979). [Back to text]
1112
See, e.g., Sykes v. United States, 564 U.S. 1 (2011); Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. 192 (2007). [Back to text]
1113
See Johnson v. United States, 576 U.S. ___, No. 13–7120, slip op. (2015). [Back to text]
1114
See 18 U.S.C. § 924(e)(2)(B) (2012). [Back to text]
1115
Johnson, slip op. at 2–3. [Back to text]
1116
See James, 550 U.S. at 208. [Back to text]
1117
Johnson, slip op. at 5–6. [Back to text]
1118
Id. [Back to text]
1119
See id. at 6–10 (“Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.”). [Back to text]