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  •  The Due Process clauses of the Fifth and Fourteenth Amendments prohibit most legislatures and courts from behaving in a way that would criminalize conduct without giving ordinary people fair warning of what is being prohibited. As we’ll see immediately below, a statute that is unduly vague, or that gives the police undue discretion in when to make an arrest, is likely to be found to violate due process.
  • 2. The problem of vagueness:  The legality principle means that criminal laws that are unreasonably vague may not be enforced. Typically, the Constitutional ground for declining to enforce an unreasonably vague criminal statute is that enforcement would violate the due process rights of the person charged.

    a. Rationale:  There are actually two distinct but related reasons why unreasonably vague statutes are held to violate the due process rights of persons charged under them:

    • First, if a statute is unreasonably vague, it does not provide fair warning of what is prohibited. [Grayned v. City of Rockford (1972)]
    • Second, an unreasonably vague statute gives too much discretion to law enforcement personnel, raising danger of “arbitrary and discriminatory enforcement.” (City of Chicago v. Morales discussed immediately infra). The Supreme Court has therefore held that a criminal statute must “establish minimal guidelines to govern law enforcement” (Kolender v. Lawson (1983)).

    b. Loitering laws:  Laws against “loitering” or “ vagrancy” pose these twin dangers of lack-of-fair-warning and selective-enforcement especially vividly.

    Example:  Chicago, to combat gang violence, enacts an ordinance that says that if a police officer reasonably believes that at least one of two or more people in a public place is a “criminal gang member,” and the people are “loitering” (defined as “remaining in any one place with no apparent purpose”), the officer can and must order them to “disperse” from “the area.” A person who disobeys the order can be punished by imprisonment. (It doesn’t matter whether the person turns out to be a gang member or not.)

    Held, the ordinance is unconstitutionally vague. A majority of the Court believes that it fails to “establish minimal guidelines to govern law enforcement.”  For instance, the ordinance is not limited to people whom the police suspect of being gang members (as long as one member of the group is reasonably suspected of being such), nor to persons whom the police suspect of having a harmful purpose (since it applies to anyone whose purpose is not apparent to the observing officer). Also, a plurality of the Court believes that the ordinance fails to give fair notice of what conduct is forbidden, because of the vagueness of the concept of “no apparent purpose.” [City of Chicago v. Morales (1999)]

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