Vagueness and Overbreadth in Criminal Statutes

Among the fundamental principles that underlie the enforcement of the criminal law are those embodied by the doctrines of void-for-vagueness and overbreadth. The first doctrine, which finds its source in the due process clause of the Fifth and Fourteenth Amendments, requires that a law be sufficiently precise in its formulation so as to give people of ordinary intelligence sufficient warning that they may conduct themselves in a manner that will avoid criminal liability. Under the overbreadth doctrine, which is associated primarily with the First Amendment rights of speech and assembly, a statute can be invalidated if, in addition to proscribing activities that are not constitutionally prohibited, it applies to activities that are so protected. Although complementary, the two doctrines are analytically distinct, and each needs to be considered separately.

The allegation of unconstitutional vagueness was originally made in connection with a wide range of statutes targeting Communists, antiwar protesters, abortion providers, abortion protesters, and people who refused to take loyalty oaths. In recent years, the claim of unconstitutional vagueness has been made most frequently in the context of vagrancy laws. For example, a City of Jacksonville, Florida, ordinance that prohibited a person from being a ‘‘vagrant’’ (defined to include ‘‘rogues and vagabonds,’’ ‘‘persons wandering or strolling around from place to place without any lawful purpose,’’ and ‘‘habitual loafers’’) was held to be so imprecise as to violate the constitutional requirement of certainty.

Four rationales are said to underlie the void-forvagueness doctrine. The first is the supposed unfairness of imposing criminal punishment on a defendant who is unaware that such conduct is prohibited. However, several scholars have argued that, in fact, the criminal law ordinarily provides that ‘‘ignorance of the law is no excuse’’ and that ascertaining the nature and extent of a particular penal statute frequently involves difficult questions of statutory interpretation. The second rationale is that vague statutes have the effect of unconstitutionally shifting the responsibility for defining what is criminal from the most representative branch, the legislature, to the least representative branch, the courts. In response to this claim, it has been argued that separation of powers doctrine requires only that courts refrain from creating common law crimes, not that they be limited in their ability to interpret vague statutes passed by the legislature. The third rationale is that vague statutes encourage arbitrary and discriminatory enforcement of the criminal law. And, indeed, statutes and ordinances that prohibit unspecified forms of ‘‘annoying’’ or ‘‘disorderly’’ conduct are precisely the kinds of laws that allow police and prosecutors unduly broad discretion in deciding whom to arrest and prosecute—powers that are often exercised to the detriment of the poor and minorities. The final rationale is that vague laws will tend to overdeter: A vague statute can ‘‘inhibit the exercise’’ of constitutional freedoms, leading citizens to ‘‘steer far wider of the unlawful zone...than if the boundaries of the forbidden areas were clearly marked.’’

Closely related to the problem of vagueness is that of overbreadth. A statute is said to be overbroad if, in addition to proscribing activities that are constitutionally protected, it also sweeps within its coverage activities that are protected by one or another constitutional right (usually found in the First Amendment, although the doctrine has also been cited in abortion rights cases as well). A good example is an Alabama statute that prohibited picketing ‘‘for the purpose of hindering, delaying, or interfering with’’ business. In declaring the statute unconstitutional, the Court noted that a chilling effect on protected conduct might occur under a statute that does not ‘‘aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of’’ constitutional rights.

The overbreadth doctrine is unusual in constitutional law in that it allows a defendant to challenge the validity of a statute or ordinance ‘‘on its face,’’ rather than the more common ‘‘as applied.’’ Plaintiffs are ‘‘permitted to challenge a statute not because their own rights of free expression are violated, but because...the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’’ As such, the overbreadth doctrine is said to provide ‘‘breathing space’’ for First Amendment freedoms. The void-forvagueness and somewhat narrow overbreadth doctrines thus have at least one rationale in common. Like laws that are vague, laws that are overbroad may have a ‘‘chilling effect’’ on citizens’ willingness to exercise their constitutional rights. In both cases, citizens will be unsure about whether a particular form of contemplated activity is likely to lead to criminal enforcement.

STUART P. GREEN

References and Further Reading

  • Amsterdam, Anthony G., Note, The Void-for-Vagueness Doctrine in the Supreme Court, University of Pennsylvania Law Review 109 (1960): 67–116.
  • Batey, Robert, Vagueness and the Construction of Criminal Statutes—Balancing Acts, Virginia Journal of Social Policy and Law 5 (1997): 1–96.
  • Fallon, Richard H., Jr., Making Sense of Overbreadth, Yale Law Journal 100 (1991): 853–908.
  • Jeffries, John Calvin, Jr., Legality, Vagueness, and the Construction of Penal Statutes, Virginia Law Review 71 (1985): 189–244.
  • Monaghan, Henry Paul, Overbreadth, Supreme Court Review (1981): 1–39.

See also Abortion Protest Cases; Barenblatt v. United States, 360 U.S. 109 (1959); Chicago v. Morales, 527 U.S. 41 (1999); Kolender v. Lawson, 461 U.S. 352 (1983); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Vagrancy Laws

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