Fifth Amendment — Void for Vagueness Doctrine

Amdt5.8.1 Overview of Void for Vagueness Doctrine

Criminal statutes that 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 The Supreme Court has observed that: “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 define 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 immigration “removal cases,”⁶ “in view of the grave nature of deportation.”⁷

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

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

Amdt5.8.3 Laws that Define Criminal Offenses and Requirement of Notice

Conceptually related to the problem of definiteness in criminal statutes is the problem of notice. Ordinarily, ignorance of the law affords no excuse, or, in other instances, the nature of the conduct may sufficiently alert a person that there are laws that he must be observe.¹ On occasion the Court has 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.² When conduct is not inherently blameworthy, however, a criminal statute may not impose a legal duty without notice.³

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,⁴ 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”⁵ could not be applied retroactively. The Court cited the relatively archaic nature of the “year and a day rule,” its abandonment by most jurisdictions, and its inapplicability to modern times as reasons that the defendant had fair warning of the possible abrogation of the common law rule.

Amdt5.8.4 Laws That Establish Permissible Criminal Sentences

With regard to statutes that fix criminal sentences,¹ the Supreme Court has explained that the law must specify the range of available sentences with “sufficient clarity.”² 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),³ the Court concluded that the clause in question was void for vagueness.⁴ In relevant part, the ACCA imposed an increased prison term upon a felon who was in possession of a firearm, if that felon had previously been convicted for a “violent felony,” a term that the statute defined to include “burglary, arson, or extortion, [a crime that] involves use of explosives, or” crimes that fell within the residual clause—that is, crimes that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.”⁵ 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.”⁶ To determine whether a crime fell 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 consider whether the underlying crime fell within a category of crime that ordinarily would present a serious risk of physical injury.⁷

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.⁸ 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.⁹ In so holding, the Court relied heavily on the difficulties that federal courts (including the Supreme Court) have had in establishing consistent standards to judge the scope of the residual clause, noting that the failure of “persistent efforts” to establish a standard can provide evidence of vagueness.¹⁰

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.¹¹ 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.¹² The Court concluded that Johnson had “straightforward application” to the case before it,¹³ because in both cases, the statutes required courts to impermissibly speculate about the “ordinary version” of an offense, and about whether that offense involved a 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.¹⁴ 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.¹⁵ 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.”¹⁶

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.¹⁷ 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.’”¹⁸ 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.”¹⁹ 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.²⁰ 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.”²¹ 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.²² The Court emphasized that it had already interpreted very similar statutory provisions to require the categorical approach,²³ concluding that the word “offense” is “most naturally” read to “refer to a generic crime”²⁴ and expressing concerns about an approach that would give different meanings to the phrase “crime of violence” in different parts of the criminal code.²⁵ 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.”²⁶