Constitutional Limits--Vagueness

Legislatures may criminalize whatever conduct (or omissions) they want, even if those laws challenge our notions of fairness, sense, or efficency. There are a great many stupid criminal laws.  

On the other hand, the federal and state constitutions do provide an outer limit. Most laws are constitutional, but some go so far that courts must strike them down as unconstitutional. For example, a law cannot punish speech or religious worship protected by the First Amendment, or possession of a gun protected by the Second. Federal law cannot punish treason without two witnesses to an overt act. 

We will consider just one particularly important type of law under the Constitution: laws that are so vague they do not provide notice to individuals what conduct is prohibited, nor guidance or limits to law enforcement. This doctrine parallels our work above on the rule of lenity and statutory interpretation in general: laws must be clear and put on notice individuals before they can be prosecuted. But the void-for-vagueness doctrine adds other constitutional concerns, most particularly, arbitrary government enforcement. Arbitrary can also mean discriminatory enforcement against particualr groups. 

The void-for-vagueness doctrine often arises in response to laws prohibiting loitering, and related laws, that the state and police often use to control and regulate poor people, and sometimes minorities. In other words, focus not only on the constitutional doctrine, void-for-vagueness, but also on the types of laws we are addressing. What purpose do they serve and are they just?

After we consider the doctrine, we will apply it to Denver's anti-camping law, especially as applied to homeless encampments as well as to the unhoused persons living there.