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Cardozo Public Law, Policy & Ethics Journal

Abstract

The void for vagueness doctrine is itself indefinite. The current void for vagueness analysis provides that the law is void for vagueness if it fails to provide fair notice of the prohibited conduct or is so standardless that it allows for discriminatory enforcement. Uncertainty within the doctrine exists because the United States Supreme Court has not articulated a definitive position as to when facial review is appropriate in the void for vagueness analysis. Further, the Court's decision that a law can be void for vagueness based solely on a finding that there is a potential for discriminatory enforcement creates uncertainty because it is not clear what standard the Court applies to determine that such a potential exists. Arguably, law enforcement discretion always exists with the corresponding potentialfor discriminatory enforcement. Thus, the judiciary, under a lax facial review standard, could invalidate any law, indicating an absence of any standard. This expanded potential for judicial activism and the uncertainty within the doctrine might be acceptable if the judiciary's actions in declaring the law void for vagueness actually eliminated or limited discriminatory enforcement of the law. However, it is not clear that the result the judiciary seeks in invalidating a law as unconstitutionally vague, namely that the legislature create a more specific law, eliminates or limits discriminatory enforcement. Thus, a false perception exists that the judiciary remedies discriminatory enforcement through the void for vagueness doctrine when in fact it does not do so.

This Paper proposes two changes that would result in a clear standard. First, it suggests that the second prong of the void for vagueness analysis be eliminated, such that the only requirement for determining that a law is unconstitutionally vague would be whether the language of the law provided fair notice of the prohibited conduct. Second, it suggests that a strict facial review standard be adopted such that a law must be determined to be unconstitutionally vague in all of its applications before it can be invalidated in its entirety. The institution of these two suggested changes would require a determination that the law is standardless, thereby providing no notice of the prohibited conduct, before the law could be invalidated on its face in its entirety, as has been the Court's traditional practice. Instituting these suggested changes would help create a more definitive and predictable void for vagueness doctrine. In turn, this clearer void for vagueness doctrine would help legislatures seeking to accomplish certain aims create constitutional laws, while at the same time limiting the judiciary's ability to invalidate laws in their entirety that have constitutional applications. Because it is suggested that the second prong of the void for vagueness analysis regarding discriminatory enforcement be eliminated, the Paper concludes with a brief discussion of other methods that may be more capable to create solutions to the problem of discriminatory enforcement of laws.

Disciplines

Constitutional Law | Criminal Law | Criminal Procedure | Law | Legislation

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