Vagueness challenges are in vogue

Of late, claims of statutory vagueness are showing up around the country. There may be a good reason for that.

Almost a century ago, the U.S. Supreme Court first articulated a constitutional due process requirement that criminal statutes provide a definite standard of conduct. See United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921) (quashing indictment charging grocery store with feloniously charging an "unjust and unreasonable rate" for sugar by selling a 50-pound bag for $10.07).

The cornerstone of this "void for vagueness" doctrine has been fair notice of what conduct is criminal. As the Supreme Court has put it: "No one may be required at the peril of life, liberty, or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (voiding criminal conviction for being a "gangster," where what constituted a "gang" was undefined). In addition to notice, the court also has voiced a concern that vague statutes lead to arbitrary or discriminatory law enforcement.

But vagueness challenges have only rarely succeeded, in the Supreme Court at least. See, e.g., Skilling v. United States, 561 U.S. 358 (2010) (invalidating some applications of federal honest services fraud statute); City of Chicago v. Morales, 527 U.S. 41 (1999) (striking down loitering statute); Kolender v. Lawson, 461 U.S. 352 (1983) (voiding California penal statute requiring person stopped to provide "credible and reliable" identification).

A decision last year, however, has revved up the vagueness doctrine.

In Johnson v. United States, 135 S. Ct. 2551 (2015), an opinion by Justice Antonin Scalia on one of the final days of his last full term, the Supreme Court struck down as unconstitutionally vague the "residual clause" of the federal Armed Career Criminal Act. That act imposes increased penalties on any criminal with three convictions for a "violent felony," and violent felony was defined to include any felony "that presents a serious potential risk of physical injury to another." The latter phrase was known as the residual clause, and, from 2007 through Johnson, the Supreme Court took five cases to determine whether particular crimes either categorically did, or did not, present a serious potential risk of physical injury under that clause.

By the fourth such case, Scalia called, at that point futilely, for the clause to be struck down. See Sykes v. United States, 564 U.S. 1, 28 (2011) (Scalia, J., dissenting) ("We should admit that ACCA's residual provision is a drafting failure and declare it void for vagueness."). In Johnson, the fifth residual clause case, a majority of the court adopted that view.

"Nine years' experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise," wrote Scalia for the court. "Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process."

Johnson has quickly become the most frequently cited case that the Supreme Court has decided in the past few years. By its 17-month anniversary last month, Johnson had been cited in 2,928 opinions nationwide, according to a Westlaw search. Although most of these decisions are federal, Johnson has been cited in thirteen California appellate opinions on Westlaw, which would not even include most unpublished orders from state appellate and trial courts on habeas petitions.

In fact, due to Johnson, the Supreme Court currently has two vagueness challenges on its docket. In Beckles v. United States, 15-8544, argued Nov. 28, the court is considering language in the federal sentencing guidelines that, although recently amended, used to be identical to that struck down in Johnson. In Lynch v. Damaya, 15-1498, to be argued Jan. 17, the court will consider language in a federal civil statute that is similar to that in the ACCA residual clause and that often determines whether an individual is to be deported. A panel of the 9th U.S. Circuit Court of Appeals held that "Johnson dictates that [that statute] be held void for vagueness." Dimaya v. Lynch, 803 F.3d 1110, 1115 (9th Cir. 2015).

Johnson seems to have fostered new attorney interest in vagueness arguments. Is there something in the case that justifies this, creating hope for vagueness challenges where little lay before?

One aspect of Johnson may warrant the attention. And that is the case's rejection of what Justice Samuel Alito, dissenting, referred to as the case's elimination of "the well-established rule that a statute is void for vagueness only if it is vague in all its applications."

Before Johnson, many lower courts read Supreme Court precedent to require them to apply that rule in evaluating claims that a statutory provision is vague on its face. For example, the 9th Circuit has held that "[a] law is void for vagueness if it is impermissibly vague in all of its applications." United States v. Makowski, 120 F.3d 1078, 1080 (9th Cir. 1997) (quotation omitted); Castro v. Terhune, 712 F.3d 1304, 1311 (9th Cir. 2013) ("to succeed on his vagueness claim, Castro must show that [the statute] would be impermissibly vague in all its applications.")

An often-cited California case, as well, held that to demonstrate that a statute is facially vague, "a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that the law is impermissibly vague in all of its applications." Evangelatos v. Superior Court, 44 Cal. 3d 1188, 1201 (1988); see, e.g., People v. Morera-Munoz, 2016 DJDAR 11469 (Nov. 18, 2016).

But Johnson rejected this rule in striking down the residual clause.

In Johnson, the government argued that because some applications of the residual clause are straightforward, the difficulties with others cannot render the clause vague as a whole. The majority was unpersuaded. Conceding that "statements in some of our opinions could be read to suggest otherwise," Scalia wrote that the court's "holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp."

To demonstrate this, Scalia harkened back to the L. Cohen Grocery Co. case and pointed out that even though charging a thousand dollars for a pound of sugar would surely be unreasonable, the court nevertheless found the statutory "unjust and unreasonable rate" standard unconstitutionally vague and struck down the provision. Scalia then asserted that the correct reading of the Supreme Court's opinions is simply that when the court has found a statute vague it is, by definition, vague in all its applications. Therefore, "the dissent's supposed requirement of vagueness in all applications is not a requirement at all, but a tautology."

As a consequence of this reasoning, when lower courts address vagueness challenges, it may no longer be viable to reject them upon finding that the defendant has failed to demonstrate that the statute is "vague in all its applications."

Johnson instead seems to rely on a more general application of the principles underlying the doctrine: whether the law as a whole either "denies fair notice to defendants" or "invites arbitrary enforcement by judges." The application of this approach may be less stringent than the "vague in all its applications" rule and thus may provide openings for vagueness challenges.

As with the residual clause, it is not unusual for a criminal statute or sentencing provision to provide some level of uncertainty as to the scope of its application. See, e.g., 18 U.S.C. Section 1031(b) (authorizing higher sentence for fraud offenses that "involve[] a conscious or reckless risk of serious personal injury"); California Penal Code Section 11417(b) (criminalizing release of hazardous material where it would place persons or animals "at risk of serious injury, illness, or death, or endanger[] the environment"); California Penal Code Section 278.6 (sentencing factor whether "[t]he child was exposed to a substantial risk of physical injury or illness").

Does the constitutional vagueness of such provisions depend on how high a percentage of a statute's likely applications are uncertain, even if some are certain? Do ordinary or common applications matter more than rare ones? Could it be proper to ask whether the statute has a "core" that is definite? See Smith v. Goguen, 415 U.S. 566, 578 (1974) (criminal statute vague where it had "no core"). These are the type of questions that may matter now, where they previously may not have mattered under the "vague in all its applications" test.

The nationwide onrush of statutory vagueness arguments may be occurring, in part, because Johnson has freed challengers from this restriction that previously was often imposed. How the vagueness doctrine shapes up should become less nebulous as Johnson ages.