Void-for-vagueness doctrine
LO4 – To know the criteria for identifying vague laws and to understand and appreciate their constitutional significance and consequences.
LO4 – To know the criteria for identifying vague laws and to understand and appreciate their constitutional significance and consequences.
A law is void for vagueness (the principle that statutes violate due process if they don’t define a crime and its punishment clearly enough for ordinary people to know what is lawful) if it forbids conduct and prescribes punishments in terms so uncertain that ordinary people have to guess at their meaning before they choose a course of action. (Lanzetta v. New Jersey 1939, 453) The U.S. Supreme Court has ruled that vague laws violate the guarantees of two provisions in the U.S. Constitution. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not deny any individual life, liberty, or property without due process of law. The Fourteenth Amendment provides that no state government shall deny any person life, liberty, or property without due process of law.
How do vague laws violate the due process guarantees? The reasoning behind the void-for- vagueness doctrine goes like this:
1. The Fifth and Fourteenth Amendments to the U.S. Constitution ban both federal and state governments from taking any person’s “life, liberty, or property without due process of law.”
2. Criminal punishment deprives individuals of life (capital punishment), liberty (imprisonment), or property (fines).
3. Therefore, failure to warn private persons of what the law forbids and/or allowing officials the chance to define arbitrarily what the law forbids denies individuals their life, liberty, and/or property without due process of law.
The Aims of the Void-for-Vagueness Doctrine
The void-for-vagueness doctrine takes aim at two evils similar to those of the ban on ex post facto laws. First, void laws fail to give fair warning to private individuals as to what the law prohibits. Second, they allow arbitrary and discriminatory law enforcement. A famous case from the 1930s gangster days, Lanzetta v. New Jersey (1939), still widely cited and relied on today, is an excellent example of both the application of the doctrine and its purposes. The story begins with a challenge to this New Jersey statute:
Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster. . . . Every violation is punishable by fine not exceeding $10,000 or imprisonment not exceeding 20 years, or both. (452)
The challengers attacking the statute for vagueness were Ignatius Lanzetta, Michael Falcone, and Louie Del Rossi. On June 12, 16, 19, and 24, 1936, the three challengers, “not being engaged in any lawful occupation”; “known to be members of a gang, consisting of two or more persons”; and “having been convicted of a crime in the State of Pennsylvania” were “declared to be gangsters.”
The trial court threw out their challenge that the law was void for vagueness; they were tried, convicted, and sentenced to prison for “not more than ten years and not less than five years, at hard labor.” The New Jersey intermediate appellate court and the New Jersey Supreme Court also threw out their challenges. But they finally prevailed when a unanimous U.S. Supreme Court ruled that the New Jersey statute was void for vagueness. Why?
No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. (453)
The phrase “consisting of two or more persons” is all that purports to define “gang.” The meanings of that word indicated in dictionaries and in historical and sociological writings are numerous and varied. Nor is the meaning derivable from the common law, for neither in that field nor anywhere in the language of the law is there definition of the word. Our attention has not been called to, and we are unable to find, any other statute attempting to make it criminal to be a member of a “gang.” (454–55)
Notice that the answer to the question, “What’s fair notice (in vague laws, isn’t whether the defendant knows there’s a law against the act but whether an ordinary, reasonable person would know that the act is a crime) ?” in vague laws isn’t subjective; that is, it’s not what a particular defendant actually knows about the law. For example, the Court didn’t ask what Lanzetta and his cohorts knew about the gangster ordinance: Were they aware it existed?
Did they get advice about what it meant? Did their life experiences inform them that their behavior was criminal (Batey 1997, 4)?
That’s because, according to the courts, the proper question, “What’s fair notice in void-for- vagueness law?” is objective; namely, “Would an ordinary, reasonable person know that what he was doing was criminal?” Perhaps the best definition of objective fair warning is
Despite the importance of giving fair notice to individuals, the U.S. Supreme Court (1983) decided that providing “minimal guidelines to govern law enforcement” trumps notice to private individuals as the primary aim of the void-for-vagueness doctrine (Kolender v. Lawson 1983, 357). According to the Court:
Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections. (358) And, quoting from an old case (U.S. v. Reese 1875), the Court in Lawson elaborated further on the choice to give priority to controlling arbitrary and discriminatory enforcement: It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. (221)
Giving priority to controlling law enforcement is more realistic than giving fair notice to hypothetical reasonable, ordinary people. Police officers and prosecutors are more likely to read what’s in the criminal statutes and know about the cases that interpret them. So it makes sense for courts to ask whether statutes clearly indicate to ordinary police officers and prosecutors what the law prohibits. Inquiries that seem “wrongheaded” when they’re directed at guaranteeing fair notice to ordinary noncriminal justice experts become reasonable when they’re examined to decide whether they’re clear enough to limit arbitrary and discriminatory enforcement (Batey 1997, 6–7).
Defining Vagueness
Whether the emphasis is on notice to individuals or control of officials, the void-for-vagueness doctrine can never cure the uncertainty present in all laws. Why? “Condemned to the use of words, we can never expect mathematical certainty from our language” (U.S. Supreme Court Justice Thurgood Marshall, Grayned v. City of Rockford 1972, 110). It’s not just the natural uncertainty of words that creates problems. It’s also because the variety of human behavior and the limits of human imagination make it impossible to predict all the variations that might arise under the statutes. So, courts allow considerable leeway in the degree of certainty required to pass the two prongs of fair warning and avoidance of arbitrary law enforcement.
Case
In State v. Metzger (1982), the Nebraska Supreme Court held that a Lincoln, Nebraska, city ordinance that made it a crime to “commit any indecent, immodest, or filthy act” was void for vagueness.
Furthermore, challengers face a strong presumption that statutes are constitutional. The Ohio Supreme Court summarized the heavy burden of proof challengers have to carry: The challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law.
Questions
1. State the exact wording of the offense Douglas Metzger was convicted of.
2. List all of Metzger’s acts and any other facts relevant to deciding whether he violated the ordinance.
3. State the test the court used to decide whether the ordinance was void for vagueness.
4. According to the majority, why was the ordinance vague?
5. According to the dissent, why was the ordinance clear enough to pass the void-for-vagueness test?
6. In your opinion, was the statute clear to a reasonable person? Back up your answer with the facts and arguments in the excerpt and information from the void-for-vagueness discussion in the text.
