Amdt5.8.2 Laws That Define Criminal Offenses and the Requirement of Definiteness

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Supreme Court has held laws unconstitutional when they do not define offenses with enough specificity. 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.1

A statute may be so vague or threatening to constitutionally protected activity that it can be pronounced wholly unconstitutional; in other words, “unconstitutional on its face.” 2 Thus, for instance, a unanimous Court in Papachristou v. City of Jacksonville3 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 . . . .” 4 The ordinance was found to be facially invalid, according to Justice William 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.5

In FCC v. Fox Television Stations, Inc.,6 the Court held that the Federal Communications 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. Although 18 U.S.C. § 1464 bans the broadcast of “any obscene, indecent, or profane language,” 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 issuing industry guidance. The FCC had not announced the new policy until after the instances at issue in the case (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.

On the other hand, some less vague statutes may be held unconstitutional only in application to the defendant before the Court.7 For instance, when a statute’s terms 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.8 Thus, in Palmer v. City of Euclid,9 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, who had dropped off a passenger and begun talking into a two-way radio, was engaging in conduct that could not reasonably be anticipated to fit 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.10 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.” 11 The Court noted that the phrase “no apparent purpose” was inherently subjective because its application depended on whether some purpose was “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.12 On the other hand, when 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 police’s ticketing of a car.13

State statutes with vague standards may nonetheless be upheld if a state court has interpreted the text of the statute with sufficient clarity.14 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 Supreme Court, based on a state court’s construction of the statute as applying only 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 Court viewed the underlying conditions—habitual course of misconduct in sexual matters, lack of power to control impulses, and likelihood of attack on others—as calling for evidence of past conduct pointing to probable future consequences and, therefore, as being as susceptible of proof as many of the criteria consistently applied in criminal proceedings.15

Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S. 357 (1953). back
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974). Generally, the Court will pronounce wholly void a vague statute that regulates in the area of First Amendment guarantees. Winters v. New York, 333 U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940). back
405 U.S. 156 (1972). back
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) (Frankfurter, J., dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Black, J., dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Douglas, J., dissenting). back
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 because 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 was facially void as encouraging arbitrary enforcement). back
567 U.S. 239, 258 (2012). back
When the terms of a vague statute do not threaten a constitutionally protected right, and when the conduct at issue in a particular case is clearly proscribed, then a due process “void for vagueness” challenge is unlikely to be successful. However, when the conduct in question is at the margins of an unclear statute’s meaning, it may be struck down as applied. E.g., United States v. National Dairy Corp., 372 U.S. 29 (1963). back
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
402 U.S. 544 (1971). back
Kolender v. Lawson, 461 U.S. 352, 358 (1983). back
City of Chicago v. Morales, 527 U.S. 41 (1999). back
527 U.S. at 62. back
Colten v. Kentucky, 407 U.S. 104 (1972). back
See, e.g., McDonnell v. United States, 136 S. Ct. 2355, 2372–73 (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
Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940). back