Void for Vagueness and the Due Process Clause: Doctrine and Practice

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Amdt5. Void for Vagueness and the Due Process Clause: Doctrine and Practice

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.

Criminal statutes tht lack sufficient definiteness or specificity are commonly held “void for vagueness.” 1 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.” 2 “Men of common intelligence cannot be required to guess at the meaning of [an] enactment.” 3 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.4 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.” 5 The Court may also apply the void-for-vagueness doctrine to analyze statutes governing civil “removal cases,” 6 “in view of the grave nature of deportation.” 7

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.8

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.” 9 Thus, for instance, a unanimous Court in Papachristou v. City of Jacksonville10 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 . . . .” 11 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.12

In FCC v. Fox Television Stations, Inc.,13 . 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.14 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.15 Thus, in Palmer v. City of Euclid,16 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.17 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.” 18 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.19 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.20

Statutes with vague standards may nonetheless be upheld if the text of statute is interpreted by a court with sufficient clarity.21 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.22

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.23 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.24 Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty without notice.25

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,26 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” 27 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,28 the Court has explained that the law must specify the range of available sentences with “sufficient clarity.” 29 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),30 ; Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. 192 (2007). the Court concluded that the clause in question was void for vagueness.31 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.” 32 (e)(2)(B) (2012). 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.” 33 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.34

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.35 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.36 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.37

In Sessions v. Dimaya, the Court extended Johnson to conclude that a statute allowing the deportation of any alien who committed a “crime of violence” was unconstitutionally vague.38 Similar to the statute at issue in Johnson, the statute at issue in Dimaya defined the phrase “crime of violence” by reference to a statutory “residual clause” covering felonious conduct that “involve[d] a substantial risk that physical force . . . may be used in the course of committing the offense,” and lower courts had again adopted the categorical approach to determine whether any particular offense fell within the ambit of the residual clause.39 The Court concluded that Johnson had “straightforward application” to the case before it,40 because in both cases, the statutes required courts to impermissibly speculate about the “ordinary version” of an offense, and about whether that offense involved sufficient risk of violence to fall within the ambit of the provision. In so doing, the Court rejected purported distinctions between the two residual clauses.41 The government raised a number of textual differences between the two statutes—the Dimaya statute used the phrase “in the course of,” while the Johnson statute did not; the Dimaya statute referenced the risk of “physical force,” while the Johnson statute referred to “physical injury” ; and the Dimaya statute, unlike the Johnson statute, did not include an exemplary list of covered crimes.42 In the eyes of the Court, these were “the proverbial distinction[s] without a difference,” because none related “to the pair of features—the ordinary-case inquiry and a hazy risk threshold—that Johnson found to produce impermissible vagueness.” 43

The Court subsequently considered the constitutionality of another residual clause in United States v. Davis, and as in Johnson and Dimaya, held that the clause was unconstitutionally vague.44 The challenged federal statute created a sentence enhancement for offenders “using or carrying a firearm ‘during and in relation to,’ or possessing a firearm ‘in furtherance of,’ any federal ‘crime of violence or drug trafficking crime.’” 45 (c)(1)(A)). The statutory definition of “crime of violence” included a residual clause stating that a felony offense would be included in the definition if, “by its nature,” the offense “involve[d] a substantial risk that physical force . . . may be used in the course of committing the offense.” 46 (c)(3)). This provision was almost identical to the residual clause considered in Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018). In light of Johnson and Dimaya, the government acknowledged that if this statute also used the categorical approach to determine whether a crime was a “crime of violence,” the provision would be unconstitutional.47 Instead, the government defended the provision by arguing that courts should adopt a “case-specific approach” to interpreting this statute, asking whether a defendant, through his or her “actual conduct,” posed a “substantial risk of physical violence.” 48 Although the Court acknowledged that this case-specific method would “avoid the vagueness problem” by focusing on the specific defendant’s actual conduct, it nonetheless concluded that the statute could not be read to embrace this approach.49 The Court emphasized that it had already interpreted very similar statutory provisions to require the categorical approach,50 concluding that the word “offense” is “most naturally” read to “refer to a generic crime” 51 ) (internal quotation mark omitted). and expressing concerns about an approach that would give different meanings to the phrase “crime of violence” in different parts of the criminal code.52 Consequently, because the statute employed a categorical approach, the Court held that the provision in Davis, like the ones at issue in Johnson and Dimaya, was “unconstitutionally vague.” 53

Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). back
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
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
See United States v. Beckles, 137 S. Ct. 886, 892 (2017). back
See Kolender v. Lawson, 461 U.S. 352, 357 (1983). back
Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (plurality opinion). back
Jordan v. De George, 341 U.S. 223, 231 (1951). back
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, 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
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) (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
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
567 U.S. 239, 258 (2012). back
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
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
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
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
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
532 U.S. 451 (2001) . back
Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). back
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 137 S. Ct. 886, 892 (2017). Rather, the sentencing guidelines “merely guide the district courts' discretion.” Id. at 894. 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 895. back
See United States v. Batchelder, 442 U.S. 114, 123 (1979). back
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
See Johnson v. United States, 135 S. Ct. 2551 (2015). back
See 18 U.S.C. § 924(e)(2)(B) (2012). back
Johnson, 135 S. Ct. at 2556. back
See James, 550 U.S. at 208. back
Johnson, 135 S. Ct. at 2557–58. back
Id. back
See id. at 2558–60 ( “Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.” ). back
138 S. Ct. 1204, 1213 (2018). Justice Gorsuch did not join that portion of the Court's opinion detailing how the void-for-vagueness doctrine applies in the context of non-criminal removal cases. See id. at 1212–13. Justice Gorsuch suggested that he believed the Due Process Clause required the same standard in both criminal and civil cases, id. at 1228–30 (Gorsuch, J., concurring), but he ultimately resolved the issue by citing to the relevant statute, noting that Congress had chosen to “extend existing forms of liberty” to certain individuals—and once it had done so, the government could take away that “liberty . . . only after affording due process.” Id. at 1230. back
Id. at 1211 (majority opinion). back
Id. at 1216. back
Id. at 1218–19. back
Id. at 1218–21. back
Id. at 1218. Nor did it matter to the Court that there were fewer lower court and Supreme Court cases wrestling with the proper meaning of the statute than had divided on the proper interpretation of the Johnson statute; the cases interpreting the Dimaya statute still demonstrated divisive problems of application. Id. at 1221–23. back
139 S. Ct. 2319, 2323–24 (2019). back
Id. at 2324 (quoting 18 U.S.C. § 924(c)(1)(A)). back
Id. at 2324 (quoting 18 U.S.C. § 924(c)(3)). This provision was almost identical to the residual clause considered in Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018). back
Davis, 139 S. Ct. at 2327. back
Id. back
Id. at 2327–28. back
Id. at 2327–28. back
Id. at 2328 (quoting Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009)) (internal quotation mark omitted). back
Id. at 2329. back
Id. at 2336. back

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