§ 5.03 Avoiding Undue Discretion in Law Enforcement

§ 5.03 Avoiding Undue Discretion in Law Enforcement

A statute that lacks clarity not only provides insufficient notice to law-abiding persons, but is also susceptible to arbitrary or discriminatory enforcement. The Supreme Court observed in Kolender v. Lawson that a statute or ordinance must "establish minimal guidelines to govern law enforcement."⁴⁹ In the absence of such guidelines, the Kolender Court warned, "a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." The Due Process Clause forbids the enforcement of any statute that, due to vagueness in language, "vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied [its requirements]."⁵⁰

So-called vagrancy statutes are prime examples of such impermissible legislation. For example, in Papachristou v. City of Jacksonville,⁵¹ a city ordinance prohibited a person from being a "vagrant." Under the ordinance, "[r]ogues and vagabonds," "common drunkards," "persons wandering or strolling around from place to place without any lawful purpose," "habitual loafers," and others, were "vagrants."

On its face, of course, this language is vague. What is a "common" drunkard? What makes a person a "habitual loafer"? Worse than its imprecision, however, is that the ordinance gives the police virtually unfettered discretion to determine who is a vagrant. According to Papachristou, such laws, "though long common in Russia, are not compatible with our constitutional system." A primary concern is that a prosecution "may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest,"⁵² for example, that the "vagrant" was an African-American person "strolling" in a white community,⁵³ a poorly dressed person found in a wealthy business district, or a person whose lawful conduct, e.g., a male holding hands or kissing another male, has offended the sensibilities of the arresting officer.

The Supreme Court invalidated another ordinance on similar grounds in City of Chicago v. Morales.⁵⁴ In an effort to reduce criminal street gang activity, the Chicago City Council enacted an ordinance that provided that "[w]henever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves...