In a free society one possibility that must be continuously guarded against is the possibility that local, state or even the federal government can use law enforcement as an instrument of oppression against individuals or groups. A related danger is the possibility that police officers and prosecutors may either not understand the meaning or requirements of a law, or may deliberately use a confusingly-drafted law to arbitrarily engage in selective enforcement of it.

State legislatures and the U.S. Congress have the responsibility to draft legislation that eventually becomes part of state and federal criminal codes, but they do not always produce laws that are easy to understand. Moreover, the development of the law sometimes becomes a race between people seeking to exploit gaps in the law and the efforts of both legislatures and law enforcement to plug those gaps.

A good example of this latter problem involves laws that apply to the manufacture, distribution or use of illegal drugs. Consider drugs such as methamphetamine, cocaine, heroin or marijuana: it is one thing for a statute to outlaw these substances, but increasingly clever and technologically sophisticated people have created chemical compounds that purportedly mimic the effects of these drugs on the brain — the so-called “designer drugs” that may actually be legal (at least in the narrow sense that they are not mentioned in the anti-illegal drug statutes).

A legislature may become weary of having to constantly amend the law to add a designer drug to its proscribed list, only to have drug manufacturers bypass the law again with a slightly different chemical formulation. So it may come up with a “residual clause” in the law as a catch-all provision meant to stay ahead of the designer drug makers, but which may be written so broadly that new problems result, such as questions about whether the maker’s intent in making the substance is a factor in determining its illegality. The ultimate effect is that the law may become unconstitutionally vague.

A similar problem can arise when the legislature draws up a law that in the interests of brevity includes a “catch-all” provision that leads to problems in deciding whether a specific behavior is included or not under its prohibitions. This can, and has led to courts in multiple jurisdictions interpreting the law in different and sometimes contradictory ways, leading to confusion, appeals and a lack of what courts refer to as judicial economy.

The Supreme Court has devised tests to determine when a law should be struck because it is too vague to survive Constitutional scrutiny. These involve criteria including:

• Can an ordinary person understand the behavior that the law seeks to prohibit?
• Does the law provide enough guidance to law enforcement to discourage arbitrary enforcement?
• Would the effort of the courts to interpret a vague law effectively amount to a usurpation of the role of the legislature in writing laws? That is, instead of encouraging courts to “legislate from the bench,” would it be better to strike down the law as being unconstitutionally vague and have the legislature try again?

The bottom line of the “void for vagueness” doctrine is that laws must comport with the requirement for due process under the U.S. and state constitutions. Part of the role of the Hunsucker Legal Group is to consider whether our client has been charged under a law so poorly or so broadly written that it should be challenged on such due process grounds.

If you or a loved one has been charged with a crime in Oklahoma, contact the Hunsucker Legal Group at 405-231-5600 to schedule a free consultation with our experienced Oklahoma criminal law lawyers.