414 F.2d 1097
Hattie Mae RICKS, Appellant,
DISTRICT OF COLUMBIA, Appellee.
United States Court of Appeals District of Columbia Circuit.
Argued May 17, 1968.
Decided December 23, 1968.
Messrs. Monroe H. Freedman and Sol Rosen, Washington, D. C., with whom Mr. Ralph J. Temple, Washington, D. C., was on the brief, for appellant.
Mr. Ted D. Kuemmerling, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee.
Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Nearly every state in the Union has ventured to regulate in a criminal context an assortment of conduct characteristically grouped under the denomination "vagrancy." Congress, in like vein, has enacted the two statutes currently in operation in the District of Columbia commonly referred to as the "general vagrancy" and "narcotic vagrancy" laws. On this appeal we came face-to-face with claims of unconstitutionality directed toward the former. In a companion case, decided today, we deal with similar challenges to the latter.
The legislation now before us categorizes eight "classes of persons" who "shall be deemed vagrants in the District of Columbia," and specifies fine and imprisonment as the punishment for vagrancy. The District's police department has administratively implemented these provisions with procedures, called "vagrancy observations," which are utilized prior to vagrancy arrests. An observation, as the word connotes, consists in police surveillance of an individual, followed by questioning and the assembly of information on a vagrancy observation form. The form is turned in at a precinct station and circulated to other precincts with substantial vice problems. At least three observations within a 45-day period are customarily made before the person observed is arrested for vagrancy.
On January 22, 1966, at 3:08 a. m., two police officers, patrolling a section of the inner city described as a "den of vice," saw appellant standing in the doorway of a "known house of ill fame." The officers recognized appellant as a "known and convicted felon, thief, prostitute, vagrant, and narcotics user." She was "observed" approaching a male pedestrian and walking with him toward a neighboring "house of ill fame." The officers intercepted the pair and asked appellant a battery of questions concerning her reasons for being on the streets at that hour, to which appellant responded that she was on her way to "Slim's room" to get clothes which she left there. Inquiry was also made as to her employment status, the last time she had "turned a trick," and her use of "junk." Appellant said that she was not employed, was no longer using "junk," and had not "turned tricks" since the previous month. Compliably with the officers' request, she rolled up her sleeves, thereby revealing two needle marks on her left arm.
Four days later, an around-the-clock police vigil again focused on appellant. At 1:04 a. m. she was spotted "flagging several automobiles" carrying male occupants, and was overheard using the jargon of professional prostitutes soliciting customers. She asked one male driver if he was "sporting" and invited him to accompany her to a house because she "didn't turn any tricks in any car." She was again questioned by the police and, for the second time, her answers intimated nothing. Marks were perceived on appellant's left arm when, in response to an officer's request, she exposed it.
On January 29, 1966, seven days after the first observation, appellant was seen at 4:10 in the morning walking back and forth from a street corner. Her meandering apparently aroused the interest of a police officer who kept her in view for approximately ten minutes. Then followed another round of interrogation, and appellant was informed of the vagrancy law and told to go home.
The final observation of appellant was made by the officer who had conducted the first. On February 11, 1966, between 1:30 and 3:00 a. m., he detected appellant standing on a street corner and stopping male pedestrians as they passed. This time the officer placed appellant under arrest.
The information upon which appellant was prosecuted charged that appellant was a vagrant within three of the statute's definitions of the term:
"The following classes of persons shall be deemed vagrants in the District of Columbia:
"(1) Any person known to be a pickpocket, thief, burglar, confidence operator, or felon, either by his own confession or by his having been convicted in the District of Columbia or elsewhere of any one of such offenses or of any felony, and having no lawful employment and having no lawful means of support realized from a lawful occupation or source, and not giving a good account of himself when found loitering around in any park, highway, public building, or other public place, store, shop, or reservation, or at any public gathering or assembly. * * *
"(3) Any person leading an immoral or profligate life who has no lawful employment and who has no lawful means of support realized from a lawful occupation or source. * * *
"(8) Any person who wanders about the streets at late or unusual hours of the night without any visible or lawful business and not giving a good account of himself."
At the ensuing trial in the Court of General Sessions, appellant pressed motions to dismiss the information and for a judgment of acquittal on the ground, inter alia, that the vagrancy statute was unconstitutionally vague. Chief Judge Greene, in an illuminating opinion, expounded the view that the statute was indeed invalid but, recognizing the binding force of decisions of the District of Columbia Court of Appeals sustaining the statute, denied both motions and found appellant guilty as charged. The Court of Appeals affirmed, adherently to its earlier pronouncements, and we allowed this further appeal because of the obvious importance of the questions involved.
Appellant advances skillfully a number of bases upon which it is urged that the vagrancy law is unconstitutional, but we find it necessary to consider but one. The pervading difficulty, as we see it, is the legislative omission to provide a reasonable degree of guidance to citizens, the police and the courts as to just what constitutes the offenses with which appellant was charged. We reverse, holding that each of the statutory provisions upon which appellant's conviction rests is so vague as to infringe rights secured by the Fifth Amendment.
* Reasonable precision in the definition of crime has been regarded as a desideratum by free people since the early days of the common law. That precept, virtually from the birth of the Nation, has occupied a position of honor in the scheme of constitutional values, and for justifications of the highest order. Fluid language which sweeps citizens under the penumbra of penal legislation without warning is abhorrent. The imposition of criminal liability for behavior which a person could not reasonably understand to be prohibited offends the most rudimentary considerations of fairness. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Thus "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."
Statutory vagueness has a distinctive impact, too, on human activity not essentially wicked and on the processes by which its criminality is to be appraised. "Liberty under law extends to the full range of conduct which the individual is free to pursue." Since most people shy away from legal violations, personal liberty is unconstitutionally dampened when one can but doubt whether he is actually free to pursue particular conduct. Moreover, definitional uncertainty is an open invitation, if indeed not inevitably an antecedent, to virtually unrestrained administration. "[A] law fails to meet the requirements of the Due Process Clause" not only "if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits," but also if it "leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." And legislation of that character "does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat."
So it is that a criminal statute perishes on constitutional grounds when it leaves speculative the tests for ascertaining the line separating guilty from innocent acts. A reasonable degree of certainty is prerequisite. Fair notice to those of ordinary intelligence is necessary. It is essential that the statutory language "conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices."
These are the critical elements of the void-for-vagueness doctrine; these are the criteria by which we must measure the statute at bar. "Vague laws in any area suffer a constitutional infirmity," and what the Constitution demands of other laws it exacts imperatively of those which undertake to punish vagrancy.
Appellant was prosecuted and convicted under three of the statutory subsections — (1), (3) and (8) of Section 22-3302 — defining independent concepts of vagrancy. Perusal of these subsections discloses that each incorporates language precipitating problems in terms of the void-for-vagueness doctrine. These provisions we must now individually scrutinize, in the light of pertinent constitutional principles, to ascertain whether they can pass muster.
D.C.CODE § 22-3302(1)
The first type of vagrancy with which appellant was charged has four elements. "Any person  known to be a * * * thief, * * * by his having been convicted in the District of Columbia * * * of * * * such [offense] * * * and  having no lawful employment and having no lawful means of support realized from a lawful occupation or source, and  not giving a good account of himself  when found loitering around in any * * * public place" is a vagrant. Appellant's prior conviction of petit larceny supplies the first element, and there was evidence on which the trial judge could find the second. But this subsection requires additionally that the accused be found loitering, and that he fail to give a good account of himself. We are unable to perceive in these two elements the degree of specificity which due process enjoins upon legislative enactments that specify criminal offenses.
"Loitering" has not been defined legislatively. The District of Columbia Court of Appeals, adopting our definition of the term in another context, has construed "loitering" in the vagrancy statute as meaning "to be slow in moving, to delay, to linger, to be dilatory, to spend time idly, to saunter, to lag behind." In contrast to such seemingly innocuous conduct, however, the court has also read subsection (1) to mean that "when one's wandering and conduct on the streets at late or unusual hours is such as to give reasonable grounds for a belief that his purpose for being on the street is not a legitimate one, we think that the law may validly require that he be called upon to account for his actions." Further evidencing the susceptibility of the statutory language to divergent understandings, witnesses at appellant's trial likewise voiced widely differing interpretations of "loitering," ranging from the ostensibly innocent to the potentially criminal. In the complete absence of statutory criteria by which the one can be objectively distinguished from the other, we find a fatal constitutional flaw.
In People v. Diaz, a statute forbidding anyone "to lounge or loiter about any street or street corner" was held to be constitutionally infirm because it failed "to point up the prohibited act, either actual or threatened," and thus did not differentiate "conduct calculated to harm and that which is essentially innocent." Meeting the same fate was the statute involved in Hawaii v. Anduha, which made it a misdemeanor for any person to "habitually loaf, loiter, and/or idle upon any public street or highway or in any public place." Other courts treating similar enactments have reached the same conclusion. These decisions undergird our conclusion that "loitering," as used in the subsection before us, is unconstitutionally vague.
— "Not Giving A Good Account of Himself"
We encounter difficulty not only with "loitering" but equally with the mandate of subsection (1) that the person loitering explain his activity in a manner that amounts to "giving a good account of himself." The statute furnishes no standard by which it can be ascertained whether an explanation for particular conduct is "good," and decisions addressing "good account" provisions are but little more definitive. A refusal to account, says the District of Columbia Court of Appeals, is a failure to give a good account, and what the statute demands is not "a mere account" but "one which is reasonably credible." We do not disagree with the court's interpretation, but that is the extent to which prior judicial construction is informative.
The record discloses disparate opinions on "good account" entertained by those to whom enforcement of the statute is entrusted. Two police officers testified that a declination to answer questions is a failure to give a good account, but another officer said that this was a matter which the judge would have to decide. An officer avowed that "[g]ood account means that you are not out there for an illegal purpose," but another declared that the accounting is not good if the answers to an officer's questions do not satisfy the officer. To the Corporation Counsel's chief prosecutor whether a good account is given is a matter determinable only on the facts of the particular case.
We deem the "good account" provision much too loose to satisfy constitutional requirements. It takes but little reflection to bring to mind almost immediately the magnitude of the guesswork its application commonly entails. As one court recently put it:
"[T]he term `good account' * * * leaves too much discretion in the hands of the police and the courts. It does not involve a certain standard, for what may be a good account to one person may very easily not be one to another. The word `good' is especially subjective in nature and is used in our parlance in many different ways and contexts. Does it mean `morally good' or does it mean `lawful' in the sense that if one does not admit to a crime he has given a good account of himself? On the other hand, `good account' may mean an account which puts the accused above suspicion or it may mean that his statement must give the officer sufficient credible information so as to negate probable cause.
"In addition, the statute imposes no time limit on `good account.' Does it require a person to give a `good account' of himself as of the moment the officer stops him or must he be prepared to explain and defend his conduct and whereabouts since he entered the state? One cannot tell how far back in time he may have to justify himself or his activities in order to avoid the criminal penalties of the statute."
However viewed, subsection (1) is an investiture of enormous discretion in those who must administer it. Interdicted persons may tarry in public places only if willing to answer questions by police officers as to why they are there, and then only at the risk that their explanations might not appeal to their inquisitors. In Shuttlesworth v. City of Birmingham, the Supreme Court held invalid an ordinance making it "unlawful for any person * * * to so stand, loiter, or walk upon any street or sidewalk * * * after having been requested by any police officer to move on," saying:
"Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. It `does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.'"
We discern no significant difference from a constitutional standpoint between a law licensing one's presence on a public street upon a police officer's favorable judgment and one conditioning it upon the officer's satisfaction with the explanation as to why the person is there.
— "Leading An Immoral Or Profligate Life"
The second statutory provision appellant allegedly violated denominates a vagrant "[a]ny person  leading an immoral or profligate life  who has no lawful employment and who has no lawful means of support realized from a lawful occupation or source." Our concern here is with the first specification. Immorality and profligateness are not terms of art, at least in common understanding, and the definitional problems they pose are quite readily apparent.
The record in this case contains an instance in point. A police officer testified that he made approximately 470 arrests for vagrancy in 1965, yet he was uncertain as to the reach of the statutory words. He was sure that "leading an immoral and profligate life means being a known prostitute." When questioned, however, as to whether the statutory language is limited to prostitution, this veteran responded "No, I imagine it means other things," but commendably admitted that "I don't know what they might mean."
Turning to prior judicial construction, we discover that the dilemma is not lessened but magnified. The District of Columbia Court of Appeals considers the provision under examination to be so elastic as to prohibit any conduct that is not "decent, upright, good, [or] right." Elaborating, it says:
"Webster's Dictionary defines `profligate' as `completely given up to dissipation and licentiousness; broken down in morals and decency.' It has been said that `Immorality' is not necessarily confined to matters sexual in their nature; it may be that which is contra bonos mores; or not moral, inconsistent with rectitude, purity, or good morals; contrary to conscience or moral law; wicked; vicious; licentious, as, an immoral man or deed. Its synonyms are: Corrupt, indecent, depraved, dissolute; and its antonyms are: Decent, upright, good, right."
We are in no position to debate this interpretation, for the statutory language leaves an open field for speculation. And given this meaning, subsection (3) affords an almost boundless area for individual asessment of the morality of another's behavior.
In Musser v. Utah, the Supreme Court remanded a conviction under a state statute prohibiting conspiracies "to commit acts injurious to public morals" with a strong suggestion that the law was unconstitutionally vague. "Standing by itself," said the Court, "it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order." We think the subsection before us is cut from much the same cloth. Opposing segments of the general public may agree as to the immorality or profligateness of many activities. But, more importantly, it is expectable, if indeed not inevitable, that they will disagree on many others without approaching absurdity. Not only does the phrase under scrutiny fail to chart for the individual citizen the course that is proscribed, but it also fails to mark out reasonably distinct boundaries for the judges, juries and police officers who are required to administer the law. We hold that the first element of subsection (3) — "leading an immoral and profligate life" — necessitates so much guesswork as to its coverage as to incur the condemnation of the Fifth Amendment.
D.C.CODE § 22-3302(8)
Subsection (8), the final provision invoked against appellant, extends the vagrancy definition to "[a]ny person  who wanders about the streets at late or unusual hours of the night  without any visable or lawful business and  not giving a good account of himself." The last component — failure to render "a good account" — alone suffices to invalidate this subsection on vagueness grounds. Upon analysis, we find that the first two elements of subsection (8) afflict it with the same malady.
— "Wanders * * * Without Any Visible Or Lawful Business"
The proscription against wandering has no built-in criterion whatever for ascertainment of the kind or degree of movement prohibited. Nor does the statute attempt to give content to the expression "without any visible or lawful business." As construed by the District of Columbia Court of Appeals, this phrase "does not refer to the ordinary vocation of the person but has reference to the purpose of being on the street, and business is not limited to the pursuit of monetary gain. One may have lawful business on the street even though he is there merely for exercise or recreation or any other proper purpose."
This appears to be a logical reading of the statutory language, but what it means is that law enforcement officers may arrest a person who "wanders" on the streets late at night without "any proper purpose." A police officer must first make an unguided determination as to whether in one's activity on the streets he "wanders." Coupled with the requirement that the wanderer give "a good account" of himself, it is evident that the officer must then make an equally unassisted judgment as to whether the purpose is "proper." Subsection (8) is thus a grant of an unfettered discretion — to administrative and judicial authorities alike — to regulate movement on the public streets. This is plainly much more than the Constitution tolerates.
The role of statutory vagueness in the aberrations of vagrancy administration appears vividly from the testimony regarding appellant's arrest and the enforcement policies generally in vogue in the District. One of the officers who arrested appellant testified that it "appeared" to him that she had been soliciting prostitution, but that for lack of evidence he "could not make a proper arrest or a proper prosecution on grounds of prostitution." "Instead," he arrested her for vagrancy, in accordance with what seems to be common practice. The other officer participating in the arrest opined that appellant is leading an immoral and profligate life because "I believe she is currently soliciting prostitution," but, since "all the elements of soliciting prostitution were not there," admitted that he "could not prove it." This officer, too, in taking appellant into custody, was simply following his usual procedure in such situations.
Definitions of crime traditionally combine a wrongful intent with a guilty act in a causal relationship to a consummated social harm. None of these characteristics is to be found in vagrancy prosecutions, which present instead "the astounding spectacle" of "criminality with no misbehavior at all." Into the making of "vagrancy" go such formless ingredients as "loitering," "wandering," "leading an immoral and profligate life," and "good account," concepts featuring a suspicion that a crime is being or might be committed. Essentially all that has to be proved beyond a reasonable doubt in a vagrancy prosecution is that the accused was observed under circumstances deemed questionable. Charges of vagrancy thus make possible criminal convictions based on conjecture rather than on evidence of criminality, contrary to the most fundamental principles of our criminal jurisprudence.
The record exposes vagrancy enforcement as a device utilized not only to inflict punishment for suspected but unprovable violations in progress but also, through preventive conviction and incarceration, to suppress crime in the future. By this theory of vagrancy administration, a police officer testifed, "undesirables" are swept from the streets into prison because "if they are not out there, the crime can't be committed." "[I]n practical effect," the witness acknowledged, "vagrancy is used as a charge or ground for arrest in cases where you feel there is prostitution or sodomy going on but you cannot make a case. * * It is used to get the undesirables off the street." "[T]he good effect of this statute," the witness continued, "is that it puts people in jail who might be about to commit a crime or who might commit a crime in the near future," and "helps to lower the crime rate of the precinct."
According to another officer, a vagrancy arrest may be preferred to an arrest for another crime, though known to be in commission, because the arrested "person might be a real smooth operator and I might not be able to catch them doing these other things." The Corporation Counsel's chief prosecutor testified that "you certainly don't have to wait until a person goes in and engages in the act of prostitution before you can see fit to arrest that person for being a vagrant."
We agree with Judge Greene that the "basic design [of the vagrancy law] is one of preventive conviction imposed upon those who because of their background and behavior are more likely than the general public to commit crimes, and that the statute contemplates such convictions even though no overt criminal act has been committed or can be proved." And Mr. Justice Frankfurter's sage observation lays bare the part that statutory vagueness plays in the realization of that objective:
"[S]tatute[s] of the type that seek to control `vagrancy' * * * are in a class by themselves, in view of the familiar abuses to which they are put. * * * Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these `vagrancy statutes' and laws against `gangs' are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided."
We do not gainsay the importance of crime prevention or the need for effective measures to combat transgression of the criminal law. But as desirable as these goals are, they cannot be achieved through techniques that trample on constitutional rights. Many years ago this court held that a citizen cannot be punished merely for being "a suspicious person." Statistical likelihood that a particular societal segment will engage in criminality is not permissible as an all-out substitute for proof of individual guilt. And not even past violation of the criminal law authorizes one's subjection to innately vague statutory specifications of crime.
We conclude, then, that subsections (1), (3) and (8) of the general vagrancy statute must fall for unconstitutional vagueness. We accordingly reverse the judgment of the District of Columbia Court of Appeals with direction to remand the case to the District of Columbia Court of General Sessions for dismissal of the information.
It may be appropriate to add a final word on the scope and nature of our ruling. Our opinion has been cast in relatively narrow doctrinal terms and passes on only those particular statutory sections involved in the information against appellant. As we have suggested in our opinion, besides the need for adequate notice to both the public and enforcement officials of what conduct constitutes criminal activity, other constitutionally protected interests may be infringed by vagrancy statutes such as those before us. While we have not relied on these doctrines, we do not wish to suggest that they are inapplicable or of less dignity than those upon which we base our ruling.
We are also aware that our ruling, as a matter of stare decisis, undercuts the validity of other sections of both the general vagrancy statute and narcotic vagrancy legislation. Our silence as to the validity of these sections does not indicate any reservation about extending our holding to cover them in appropriate cases. We do not rule on those sections now because their validity was not argued nor is decision on them necessary for resolution of the case before us. We add this word, fully aware that it is dictum, to avoid constriction of the scope of the ruling by all concerned, including those in the legislative and executive branches.