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 In class, we focused on three constitutional limitations on the power to punish:
o Void for Vagueness
o Cruel and Unusual Punishment
o Equal Protection Clause
 Language of the Fourteenth Amendment has been interpreted as imposing upon legislatures the duty to draft statutes that are clearly understandable.
o We do this for a few reasons:
• To provide fair notice to citizens of what conduct is prohibited
• Limiting police discretion to arrest people they don’t like
• Limit jury discretion to imprison people they don’t like
 “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” (Kolender – see below)
 Papachristou v. City of Jacksonville (1972)
o “Vagrancy law” punished many classes of street persons
o Holding: Vagrancy law struck down because it was extremely vague, cast too large a net that was then left to police to arbitrarily enforce.
• Violation of the Fourteenth Amendment Due Process Clause
• Criminalized many seemingly innocent actions (overbroad)
• Night walking
• People wandering or strolling from place to place without any lawful purpose or object
• Habitual loafing
• People spending their time by “frequenting houses of ill fame”
• Too much police discretion
• Police can arrest people on a suspicion of vagrancy, rather than to have probable cause for the arrest
• No standards governing the exercise of discretion by police, and the law permits and encourages arbitrary and discriminatory enforcement (seemed to be targeting poor people)
o The ordinance “failed to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute,” and “encourages arbitrary and erratic arrests and convictions.”
 Kolender v. Lawson (1983)
o Facts: Similar facts to Papachristou, but this required people “loitering” (among other prohibited behavior) to provide “credible and reliable” identification if requested by police. Law enforcement based this off a Terry stop.
o Holding: The statute is unconstitutionally vague within the meaning of the Fourteenth Amendment.
• Biggest issue the Court had was that it gave police FAR too much discretion on who to stop → gave police an unrestrained power to arrest and charge people with a violation.
• Police could stop who they wanted
• They could also decide what constituted “credible and reliable” identification
• Didn’t want to leave this up to the discretion of a police officer on his every day beat.
 City of Chicago v. Morales (1999)
o Facts: Chicago passed a law to combat gang behavior (a gang was defined as an “ongoing group of two or more people, who are involved in substantial criminal activities”). The ordinance imposed criminal penalties on “loitering” (defined as remaining in one place with no apparent purpose). If an officer ordered the group to disperse, and they refused, the criminal penalties were imposed.
• Affirmative defense could be that no member of the party ordered to disburse were in a gang → burden on prosecution on why police thought they were in a gang
o Holding: The statute is unconstitutionally vague within the meaning of the Fourteenth Amendment’s Due Process Clause.
• The ordinance had too much potential for arbitrary enforcement (majority opinion)
• No guidelines to govern the actions of law enforcement
• Police were given discretion by needing to have a “reasonable belief” that some of the members of the group were in a street gang
• Police could issue an order to disburse without first checking to see why the group was there in the first place (church group sitting on a park bench, for example)
• The ordinance does not provide fair notice to citizens about what type of “loitering” is considered unlawful (not the majority opinion)
• “Staying in one place with no apparent purpose” is too vague; people gathering on the bench to simply watch a sunset may be unlawfully loitering under the statute
• Problems with definitions of some of the words in the statute
• “Apparent purpose” → what a reasonable officer would think, or what the officer at the scene thought?
o SCOTUS arguments:
• Part III (Stevens, Ginsburg, Souter) → loitering is a constitutional right protected by the Due Process Clause
• Part IV (Stevens, Ginsburg, Souter) → vague because there’s no notice
• “It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.”
• What loitering is considered lawful, and what is considered unlawful? Not clear.
• Part V (majority) → void because it gives police too much discretion
o Other issues, not brought up by the Court
• Punishes status (see below)
• Overbroad, captures too much behavior
• First Amendment right to peaceably assemble

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