Vagueness and the Construction of Criminal Statutes -- Balancing Acts

Abstract

This article expounds a framework for analyzing issues of vagueness and statutory construction in criminal cases. If ambiguity in a criminal statute raises concern regarding either of the main policies served by the vagueness doctrine, providing fair notice and limiting arbitrary and discriminatory law enforcement, vagueness analysis proceeds to a balancing of considerations: the need for the statutory ambiguity in order to achieve a significant legislative goal, weighed against the chilling effect of the ambiguity on protected or desirable conduct. This balancing inevitably involves evaluating legislative goals and guaranteed rights. Thus in order to conduct vagueness analysis, courts must discriminate among legislation and among rights, though their warrant to do either is questionable.

The framework used for vagueness claims is also serviceable in analyzing construction issues. As with vagueness, if a statutory interpretation argued by the prosecution raises the potential for lack of fair notice or for arbitrary and discriminatory law enforcement, courts deploy a balancing test, again arraying the necessity of the construction to further a significant legislative goal against the impact of the construction on protected or desirable conduct. Here also, courts must engage in an evaluation of statutes and rights that seems inconsistent with the standard conception of the proper role of the judiciary. The article identifies the courts' use of balancing to resolve questions of vagueness and statutory construction first in significant opinions of the last generation and then in a broader selection of decisions of more recent vintage.