Joel S. Johnson

Vagueness Avoidance

Introduction

It is no secret that legislatures often enact exceedingly broad and indefinite penal statutes1 1.F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev. 641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf.Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))).Show More that delegate enormous enforcement discretion to prosecutors and police officers.2 2.Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws).Show More The constitutional void-for-vagueness doctrine promises to provide a check on that practice, at least to the extent sweeping and indeterminate statutory language “fails to give ordinary people fair notice of the conduct it punishes” or “invites arbitrary enforcement.”3 3.Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “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”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926).Show More Yet, in most cases presenting such concerns, courts need not strike down the statute as unconstitutionally vague. Instead, they can typically avoid the vagueness conclusion by narrowly construing the indefinite statutory language. This approach—vagueness avoidance—is common and well documented.4 4.See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev. 1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”).Show More But it has never been theorized. This Article takes up that task, articulating a theory of vagueness avoidance as a tool of construction for constraining penal statutes.

Opportunities for its use are many. Each of the last ten Supreme Court Terms, for example, has provided at least one occasion for application of vagueness avoidance.5 5.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”).Show More

To the extent vagueness avoidance has been recognized, however, it has been assumed to be a simple application of ordinary constitutional avoidance.6 6.See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))).Show More The Court is asked to choose between two or three plausible readings of indeterminate language in a penal statute—each usually having been adopted by some portion of the lower courts—and vagueness concerns are highlighted as a constitutional avoidance reason to reject one reading in favor of another.7 7.See, e.g., supra note 5.Show More Yet the ordinary formulations of constitutional avoidance do not capture what occurs when a court engages in vagueness avoidance.8 8.See infra Part II.Show More

The difference derives from the distinct concepts of ambiguity and vagueness. Ambiguity refers to indeterminacy that arises when a term is open to a “discrete number of possible meanings.”9 9.Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 38–39 (2010).Show More It calls for interpretation that determines semantic meaning. Ordinary constitutional avoidance canons are triggered by ambiguity, and their application points toward semantic meaning that avoids a constitutional infirmity. But vagueness and related indeterminacies in language are not resolved through interpretation; rather, a vague term is open to practically “innumerable possible meanings” or applications10 10.Id.Show More and requires judicial construction to determine legal effect. In other words, the court must craft a supplementary rule of decision to be applied to the facts of the case before it. This fundamental difference calls for a distinct conception of vagueness avoidance.11 11.See infra Part I.Show More

Vagueness and related indeterminacies are ubiquitous in law. But they pose a constitutional concern only in a specific circumstance—namely, when penal statutes contain language so indeterminate that it does not supply a textual basis to define the standard of conduct.12 12.See supra note 3.Show More That creates a constitutional concern because it effectively delegates the legislative task of defining criminal conduct and, in doing so, invites arbitrary enforcement and fails to provide sufficient notice.13 13.See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27.Show More

By engaging in vagueness avoidance, courts can usually defuse the delegation threat posed by vague statutory language while also constraining its reach. Because such language typically has some practically identifiable core, courts may legitimately craft a judicial construction of the text that retains only that core while excising its indeterminate penumbra.14 14.See infra Subsection II.B.2; cf. H.L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”).Show More In doing so, courts do not offend the principle requiring the legislature to define crime and fix punishments,15 15.Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”).Show More because the narrowing construction hews to the identifiable core within the linguistic meaning of the vague term enacted by the legislature. In such circumstances, that act of constraining the legal effect of the vague term often functions as a form of severance—the court declines to endorse the statute’s outer peripheries while simultaneously recognizing that some portion of the statute remains in force and is constitutionally valid.16 16.See infra Subsection II.B.2.Show More

Engaging in vagueness avoidance in this manner also promotes the legality principle in criminal law by preventing retroactive crime definition through judicial innovation.17 17.John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”).Show More Those whose conduct falls within the identifiable core have no claim that they lacked notice, and those whose conduct falls outside it will not be subject to punishment under the narrowly construed statute.18 18.See infra Subsection II.B.2.Show More

This conception of vagueness avoidance is not merely an attractive normative principle. It also has a basis in the Supreme Court’s decisions. Although the Court has never fully articulated the justifications for vagueness avoidance, it has traditionally been explicit about taking that approach in cases involving federal penal statutes with indeterminate language. In 2010, the Court recognized that “[i]t has long been [its] practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”19 19.Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)).Show More

In more recent cases, however, the Court has retreated from explicit vagueness avoidance. In these cases of implicit vagueness avoidance, the Court still ultimately adopts a narrowing construction of an indeterminate statutory term, but it purports to justify that result on the basis of mere interpretation that determines semantic meaning, rather than expressly relying on vagueness avoidance as a tool of construction.20 20.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion).Show More The Court sometimes invokes vagueness concerns in these cases. But when it does so, those concerns are not included as an essential component of its reasoning.21 21.See infra Section III.B.Show More

That trend is unfortunate. The Court is treating vagueness avoidance as indistinguishable from ordinary constitutional avoidance, a tool used merely to resolve ambiguity when ordinary tools of statutory interpretation are inadequate to recover semantic meaning.22 22.See infra Section III.B.Show More The Court thus gives vagueness concerns a significantly diminished role—tacking them on as an extra justification for an already-adopted reading,23 23.See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016).Show More relegating them to dicta,24 24.See, e.g., Van Buren, 141 S. Ct. at 1661.Show More or not even mentioning them at all.25 25.See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion).Show More Each of those outcomes renders vagueness avoidance less useful as an analytical matter and less forceful as a doctrinal tool, much like the modern form of the rule of lenity that can be used only in the rare case of “grievous ambiguity” after all other interpretive tools have been exhausted.26 26.Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common LawCrimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied).Show More

The practical effect is that the Court’s recent decisions rejecting exceedingly broad lower court readings of federal penal statutes27 27.See supra note 20.Show More do little to deter lower courts from adopting similarly broad constructions in other contexts.28 28.Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”).Show More Each decision is essentially “ad hoc,” providing no widely applicable principles of construction.29 29.Id. at 4.Show More The lack of controlling principles emboldens prosecutors to continue exploiting indeterminate language in the federal criminal code to “attach criminal penalties to a breathtaking amount of commonplace” conduct.30 30.Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”).Show More And some lower courts justify those broad applications at the interpretation stage on the basis of the “plain meaning” of the statute’s literal text,31 31.See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d,27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”).Show More without any real consideration of whether a plain meaning that is open-ended might pose vagueness concerns. As a result, the Supreme Court’s correction of broad lower court readings “has become nearly an annual event.”32 32.Dubin, 27 F.4th at 1041 (Costa, J., dissenting).Show More

The Court should change course by disentangling vagueness avoidance from ordinary constitutional avoidance, explicating it as a robust tool of construction for penal statutes. When applying that tool, the Court should clearly identify the core-penumbra framework exhibited by the vague term, looking to clues from the text or other sources for aid in ascertaining the practically identifiable core. Once that core has been identified, the Court should expressly excise the indeterminate penumbra.33 33.See infra Part IV.Show More

Consistent adherence to that approach would provide a replicable framework for lower courts addressing other penal statutes containing indeterminate language and would encourage prosecutors to adopt charging policies that more readily acknowledge hard limits on the scope of federal criminal laws and expressly prohibit prosecutions beyond those limits.

Robust application of vagueness avoidance would also help answer recent calls by commentators for interpretative tools to reduce the breadth and imprecision of criminal law.34 34.See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague).Show More Those commentators have often focused their energy on arguments in favor of something resembling a more muscular version of the rule of lenity—one that is more frequently triggered by ambiguity and that more often “deliberately favor[s] criminal defendants” in constraining those ambiguous criminal laws.35 35.Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity).Show More Making that argument, however, requires them to take on a significant methodological fight, contending that modern courts should loosen their modern textualist or purposivist commitment to implementing the will of the legislature—i.e., faithful agency36 36.See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010).Show More—so as to accommodate an interpretive approach for criminal statutes that gives systemic preference to defendants’ liberty interests.37 37.See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”). Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1113–14 (William N. Eskridge, Jr. & Philip F. Frickey eds., 1994) (arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”).Show More That argument has some normative appeal. But it will not likely gain traction in the current faithful-agent paradigm of statutory construction, which views the rule of lenity as inconsistent with the methodological commitment to implementing the legislative will.38 38.See infra Section II.C.Show More

A robust conception of vagueness avoidance is more promising. It comports with that methodological commitment,39 39.See infra Section II.C.Show More both because it is indisputably rooted in constitutional concerns and because it is not triggered by ambiguity—a type of indeterminacy that can often be resolved through the use of descriptive canons of interpretation and other ways of recovering semantic meaning.40 40.See infra Section I.B.Show More

The Article proceeds in four parts. Part I sets the table by distinguishing between several types of linguistic indeterminacy—ambiguity, vagueness, and contestability—and then describing how those categories closely relate to the important legal-process distinction between interpretation and construction. Part II is the heart of the Article. It builds on the interpretation-construction distinction to articulate a theory of vagueness avoidance that stands apart from ordinary constitutional avoidance. Part III then considers the extent to which that theory aligns with the Supreme Court’s decisions involving vagueness concerns, highlighting a recent and unfortunate trend toward implicit vagueness avoidance. Part IV argues that the Court should restore a more robust version of explicit vagueness avoidance.

  1.  F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev

    .

    641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).

    The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf. Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))). ↑

  2.  Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws). ↑

  3.  Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “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”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926). ↑

  4.  See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev

    .

    1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”). ↑

  5.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”). ↑

  6.  See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))). ↑

  7.  See, e.g., supra note 5. ↑

  8.  See infra Part II. ↑

  9.  Lawrence M. Solan,

     

    The Language of Statutes: Laws and Their Interpretation

     

    38–39 (2010). ↑

  10.  Id. ↑

  11.  See infra Part I. ↑

  12.  See supra note 3. ↑

  13.  See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27. ↑

  14.  See infra Subsection II.B.2; cf.

    H

    .L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”). ↑

  15.  Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”). ↑

  16.  See infra Subsection II.B.2. ↑

  17.  John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”). ↑

  18.  See infra Subsection II.B.2. ↑

  19.  Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)). ↑

  20.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion). ↑

  21.  See infra Section III.B. ↑

  22.  See infra Section III.B. ↑

  23.  See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016). ↑

  24.  See, e.g., Van Buren, 141 S. Ct. at 1661. ↑

  25.  See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion). ↑

  26.  Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied). ↑

  27.  See supra note 20. ↑

  28.  Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”). ↑

  29.  Id. at 4. ↑

  30.  Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”). ↑

  31.  See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d, 27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”). ↑

  32.  Dubin, 27 F.4th at 1041 (Costa, J., dissenting). ↑

  33.  See infra Part IV. ↑

  34.  See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague). ↑

  35.  Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity). ↑

  36.  See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev

    .

    109, 112 (2010). ↑

  37.  See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).

    Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”).

    Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law

    1113–14 (

    William N. Eskridge, Jr. & Philip F. Frickey eds.,

    1994) (

    arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev.

    265

    , 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J

    .

    1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”). ↑

  38.  See infra Section II.C. ↑

  39.  See infra Section II.C. ↑

  40.  See infra Section I.B. ↑

Vagueness Attacks on Searches and Seizures

Introduction

The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect to many low-level crimes. Those crimes are beyond the reach of the vagueness doctrine because they rarely, if ever, serve as the basis for charges in a criminal case that is seriously litigated.1 1.See infra Part II.Show More It is not that these low-level crimes have no use. Police use them all the time to justify stops and arrests, which can lead to searches that uncover evidence of more serious crimes. But when charges are brought for the more serious offenses, vagueness attacks have not been allowed when aimed at the low-level crimes on which the searches and seizures were predicated.2 2.See Michigan v. DeFillippo, 443 U.S. 31, 40 (1979).Show More

The thinking has been that an officer does not violate the Fourth Amendment when making a good-faith search or seizure, supported by adequate individualized suspicion, for a suspected violation of a low-level crime not yet judicially invalidated at the time of arrest. The inquiry is primarily factual in the sense that it concerns only the information available to the officer at the time of arrest. That is, the arresting officer is not expected to speculate or anticipate that the law will be struck down in the future. If the fact of invalidation did not occur before the arrest, it cannot be used to undermine it.3 3.See id. at 37–38.Show More

This rationale has obvious appeal. It makes sense not to expect officers to make legal determinations about the constitutional validity of a law before enforcing it; that task would seem better suited for judges. But application of the rule comes at a significant cost. Many of the low-level offenses used to justify stops and arrests perpetually evade judicial review.

Consider the following scenario: An officer arrests an individual pursuant to a city loitering ordinance that makes it unlawful for a person to refuse to identify himself at an officer’s request. The officer conducts a search incident to arrest, which reveals a gun. The individual is later charged with being a felon in possession of a firearm. If the defendant were to move to suppress the gun on the ground that it was discovered during a search predicated on an ordinance that is unconstitutionally vague, the court would deny the motion without ever addressing the vagueness question; the court would conclude that it need not reach that question because the officer was entitled to rely on the ordinance, which had not been invalidated at the time of arrest. That conclusion leaves the low-level crime just as it was—unreviewed and available for future use by police. The same sequence can and does occur repeatedly, insulating low-level crimes from vagueness challenges.

This Article explores that problem and argues that a solution is hiding in plain sight. It challenges the notion that a defendant may not successfully lodge vagueness attacks on searches and seizures in light of two Supreme Court decisions decided during the same Term—Johnson v. United States4 4.576 U.S. 591 (2015).Show More and Heien v. North Carolina.5 5.574 U.S. 54 (2014).Show More As I will explain, the two cases, especially Heien, lay the groundwork for solving the insulation problem just described.

The defect in many vague statutes is that they are so open-ended that they effectively allow the police to observe conduct, define the content of the crime to cover it, and then make an arrest based on probable cause that the arrestee committed the newly invented crime. That violates due process to the extent it permits officers to enforce a criminal statute in a way that is unexpected and indefensible in light of the text of the law being enforced and any relevant legal sources that bear on that text’s interpretation.6 6.See infra Section I.A.Show More

The Supreme Court’s decision in Heien gives officers enforcing indefinite laws some leeway when applying them. Their interpretations of the laws may be mistaken so long as they are objectively reasonable. This inquiry is purely legal or analytical. The government must be able to point to something in the text of the law or other relevant sources that affirmatively supports the officer’s interpretation; it may not simply note the absence of a judicial decision foreclosing the officer’s view of the law. As Justice Kagan explained in her concurrence in Heien, the government must show that “a reasonable judge could [have] agree[d] with the officer’s view” in light of the relevant legal sources.7 7.Heien, 574 U.S. at 70 (Kagan, J., concurring).Show More

It follows that a mistaken interpretation is unreasonable—and therefore a Fourth Amendment violation—when no reasonable judge could have adopted it in light of the statutory text and available legal materials bearing on the meaning of that text. That is essentially the same claim made when a defendant argues that the law under which he was arrested is unconstitutionally vague—that the law was so open-ended that it permitted an officer to interpret and apply it in a way that was unpredictable and indefensible in light of the law that had been stated at the time. In this way, the framework of Heien opens the door to vagueness attacks on searches and seizures.

The Article proceeds in four Parts. Part I sets the table by describing the content of the vagueness doctrine, the proliferation of low-level crimes that followed the invalidation of vagrancy statutes on vagueness grounds, and the longstanding rule that vagueness attacks may not be lodged successfully against laws serving merely as a basis for arrest. Part II explores the problem that longstanding rule has created, namely that countless low-level offenses are effectively insulated from judicial review on the vagueness question. Part III is the heart of the Article. It argues that Johnson and Heien provide the analytical architecture for successful vagueness attacks on searches and seizures in the context of a motion to suppress. Part IV then identifies potential obstacles to that theory—the prospect of narrowing constructions that cure otherwise vague statutes and the good-faith exception to the exclusionary rule—but argues that they can ultimately be overcome.

The result is a coherent and defensible theory for raising vagueness challenges in the context of a motion to suppress. Again, the primary benefit of this theory is to ensure that even low-level crimes are reviewed for constitutional vagueness. But the theory is broadly applicable. It can be used for vagueness attacks on any crime, low-level or not, on which a search or seizure is premised.

Benefits of Error in Criminal Justice

Enroll in law school and you will be taught, within the first year, a revered maxim of criminal law: “[B]etter that ten guilty persons escape, than that one innocent suffer.” This particular articulation belongs to English jurist William Blackstone, but the general notion that the criminal justice system should prefer false acquittals to false convictions predates Blackstone. Nevertheless, the maxim is generally referred to as the Blackstone principle. The ratio itself is unimportant. No one contends that we ought to ensure exactly ten guilty defendants are acquitted for every innocent defendant that is convicted. Rather, the slogan is recited to convey a more general principle: When imposing criminal punishment, we ought to tip the scales to favor false negatives (acquittals of the guilty) for the sake of minimizing false positives (convictions of the innocent), despite a likely decrease in overall accuracy.

The Note contains three Parts that proceed as follows. Part I traces the historical origins of the Blackstone principle, lays out the traditional justifications, and introduces Epps’s dynamic critique. Part II challenges the assumptions on which Epps’s analysis relies and raises significant doubts that the Blackstone principle creates negative systemic effects for defendants. Part III then introduces an affirmative rationale by arguing that the Blackstone principle benefits innocent defendants because it promotes equality

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