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 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

Footnotes

1

Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

2

Musser v. Utah, 333 U.S. 95, 97 (1948). The Court stated: “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. In a different case, the Court observed: “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).

3

Winters v. New York, 333 U.S. 507, 515–16 (1948). 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 that 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 have to pay the costs only 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).

4

See United States v. Beckles, 137 S. Ct. 886, 892 (2017).

5

See Kolender v. Lawson, 461 U.S. 352, 357 (1983).

6

Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (plurality opinion).

7

Jordan v. De George, 341 U.S. 223, 231 (1951).