§ 5.02 Statutory Clarity

§5.02 Statutory Clarity³⁰

A corollary of the common law legality principle—one that is constitutionally enforceable through the Due Process Clause—is that a criminal statute must "provide a person of ordinary intelligence fair notice of what is prohibited."³¹ The statute must give "sufficient warning that men may conduct themselves so as to avoid that which is forbidden."³² Vague statutes are unacceptable not just because they deny a law-abiding person fair notice, but also because they "invite arbitrary power . . . leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up."³³

The requirement of reasonable statutory clarity is easy to state but difficult to apply. Supreme Court Justice Felix Frankfurter has stated that the doctrine "is itself an indefinite concept. There is no such thing as 'indefiniteness' in the abstract . . . . [W]hether notice is or is not 'fair' depends on the subject matter to which it relates."³⁴ As a practical matter, in an effort to determine how much clarity is required, courts generally look at three factors: the purpose of the statute (i.e., the societal interest at stake by the legislation); the extent to which the statutory ambiguity was necessary to further the legislative goal; and the impact of the statute on the protected rights of the individual.³⁵

Courts are generally reluctant to rule that a criminal statute is unconstitutionally vague. Judges do not want to reward unreasonable misunderstandings of law, and they are cognizant of the "practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited."³⁶

The "root of the vagueness doctrine is a rough idea of fairness."³⁷ "[P]erfect clarity" is not required.³⁸ Fairness requires only "that there is sufficient warning to one bent on obedience that he comes near the proscribed area."³⁹ As England's House of Lords has nicely put it, "[t]hose who skate on thin ice can hardly expect to find a sign which will denote the precise spot where they may fall in."⁴⁰ Thus, a statute is not invalid "simply because it requires conformity to an imprecise normative standard,"⁴¹ such as the requirement that a person not act "negligently."⁴² As Justice Holmes has observed, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree."⁴³

Furthermore, "[e]ven trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid."⁴⁴ Therefore, remarkably, the Due Process Clause is not violated unless a law-abiding person would still have to guess as to the meaning of a statute after she or her...