A majority of the Court (six justices) holds that the Guidelines aren’t subject to vagueness challenges:…[T]he Court has explained that “the void-for-vagueness doctrine requires that a penal statute define the criminal 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.” [Kolendar v. Lawson, 461 U.S. 352, 357 (1983)]. For the latter, the Court has explained that “statutes fixing sentences,” Johnson, supra, at ___ (slip op., at 4) (citing UnitedStates v. Batchelder, 442 U. S. 114, 123 (1979)), must specify the range of available sentences with ‘sufficient clarity, id., at 123….
As a general matter, “the void-for-vagueness doctrine requires that a penal statute define the criminal 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.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). A vague pre-trial detention statute raises problems of arbitrary and discriminatory enforcement.
Complaint, United States v. Ronald Romano, 20 MAG 5276 (S.D.N.Y. May 26, 2020), available at https://www.justice.gov/usao-sdny/press-release/file/1278731/download. Complaint, United States v. Richard Schirripa, 20 MAG 5275 (S.D.N.Y. May 26, 2020), available at https://www.justice.gov/usao-sdny/press-release/file/1278736/download.See Skilling v. United States, 561 U.S. 358 (2010).Kolender v. Lawson, 461 U.S. 352, 357 (1983). 255 U.S. 81 (1921).
The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution allow a court to deem a criminal statute void for vagueness. The “void-for-vagueness doctrine requires that a penal statute define [a] criminal 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” (Kolender v. Lawson, 461 U.S. 352, 358 (1983)).Here, an employer or trade association challenging AB 51 may be able to show that the statute fails to provide notice to employers with “sufficient definiteness” of what conduct the law prohibits.
As the writers have pointed out in previous blogs and as noted by the Utah Supreme Court, a criminal statute to survive a vagueness challenge must (1) define a criminal offense with sufficient definiteness and in a manner that does not encourage arbitrary and discriminatory enforcement, and (2) establish minimal guidelines that sufficiently instruct law enforcement as to avoid arbitrary and discriminatory enforcement. Id., at 747 [citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)]. The court concluded that under this well-established jurisprudence no constitutionally protected conduct had been restricted by Holm’s conviction and, therefore, there was no need to consider his “facial vagueness” challenge.
Here's what that law says:A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.As the Second Circuit tells us, "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.” This language is taken from a Supreme Court case, Kolender v. Lawson, 461 U.S. 352, 357 (1983).The Court of Appeals finds that, as applied to Arriaga, the Connecticut law is not vague. Laws do not have to be drafted with razor-like precision to let everyone know what's illegal.
InPapachristouv.Jacksonville,405 U.S. 156, 167—171, this Court invalidated a traditional vagrancy law for vagueness because of its broad scope and imprecise terms. The Court recognized similar constitutional limitations inBrownv.Texas,443 U.S. 47, 52, where it invalidated a conviction for violating a Texas stop and identify statute onFourth Amendmentgrounds, and inKolenderv.Lawson,461 U.S. 352, where it invalidated on vagueness grounds California’s modified stop and identify statute that required a suspect to give an officer “credible and reliable” identification when asked to identify himself,id.,at 360. This case begins where those cases left off.