1177 Pa. Superior Ct. 454 (1955) 2

Commonwealth
v.
Mochan, Appellant.

3

Superior Court of Pennsylvania.

4Argued November 8, 1954. 5January 14, 1955. 6

 

7

[455] Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

8

Edward A. Schultz, with him H. Turner Frost and Seif, Schultz & Frost, for appellant.

9

Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.

10

OPINION BY HIRT, J., January 14, 1955:

11

One indictment (Bill 230), before us in the present appeals, charged that the defendant on May 4, 1953 "devising, contriving and intending the morals and [456] manners of the good citizens of this Commonwealth then and there being, to debauch and corrupt, and further devising and intending to harass, embarrass and villify divers citizens of this Commonwealth, and particularly one Louise Zivkovich and the members of the family of her the said Louise Zivkovich . . . unlawfully, wickedly and maliciously did then and there on the said days and dates aforesaid, make numerous telephone calls to the dwelling house of the said Louise Zivkovich at all times of the day and night, in which said telephone calls and conversations resulting therefrom the said Michael Mochan did wickedly and maliciously refer to the said Louise Zivkovich as a lewd, immoral and lascivious woman of an indecent and lewd character, and other scurrilous approbrious, filthy, disgusting and indecent language and talk and did then and there use in said telephone calls and conversations resulting therefrom, not only with the said Louise Zivkovich as aforesaid but with other members of the family of the said Louise Zivkovich then and there residing and then and there answering said telephone calls aforesaid intending as aforesaid to blacken the character and reputation of the said Louise Zivkovich and to infer that the said Louise Zivkovich was a woman of ill repute and ill fame, and intending as aforesaid to harass, embarrass and villify the said Louise Zivkovich and other members of her household as aforesaid, to the great damage, injury and oppression of the said Louise Zivkovich and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania." A second indictment (Bill 231), in the same language, charged a like offense committed by defendant on another date. Defendant was tried before a judge without a jury and was convicted on both charges and was [457] sentenced. He has appealed from the refusal by the court en banc of his motions in arrest of judgment, on the ground advanced by him that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law. In a number of States and especially in the common law State of Pennsylvania the common law of England, as to crimes, is in force except in so far as it has been abrogated by statute. 11 Am. Jur., Common Law, § 4; 22 C.J.S., Criminal Law, § 19. The indictments in these cases by their language, clearly purported to charge a common law crime not included in our Penal Code or elsewhere in our statutory law.

12

It is established by the testimony that the defendant over a period of more than one month early in 1953, on numerous occasions and on the specific dates laid in the indictments, telephoned one Louise Zivkovich, a stranger to him and a married woman of the highest character and repute. He called as often as three times each week and at any hour of the day or night. His language on these calls was obscene, lewd and filthy. He not only suggested intercourse with her but talked of sodomy as well, in the loathsome language of that criminal act, on a number of occasions. The calls were coming in from a four-party line. Through cooperation with the telephone company, the defendant was finally located and was arrested by the police at the telephone after the completion of his last call. After his arrest bearing upon the question of his identification as the one who made the calls, Mrs. Zivkovich recognized his voice, in a telephone conversation with him which was set up by the police.

13

It is of little importance that there is no precedent in our reports which decides the precise question here involved. The test is not whether precedents can be [458] found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. Commonwealth v. McHale, 97 Pa. 397, 408. In Commonwealth v. Miller, 94 Pa. Superior Ct. 499, 507, the controlling principles are thus stated: "The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government: 16 Corpus Juris, Sec. 23, page 65, citing Republica v. Teischer, 1 Dallas 335; Com. v. Sharpless, 2 S. & R. 91, and Barker v. Com., 19 Pa. 412." Cf. Com. of Penna. v. DeGrange, 97 Pa. Superior Ct. 181, in which it is said: "`Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law': Russell on Crimes and Misdemeanors, 8th Ed., Vol. 1, p. 10; 4 Blackstone's Commentaries 65, note." Any act is indictable at common law which from its nature scandalously affects the morals or health of the community. 1 Wharton Criminal Law, 12 Ed., § 23. Thus in Barker et al. v. Commonwealth, 19 Pa. 412, a common law conviction based upon open obscenity was affirmed. Cf. Sadler, Criminal & Penal Proc., § 281. And in Commonwealth v. Glenny, 54 D. & C. 633, in a well considered opinion it was held that an indictment charging that the defendant took indecent liberties tending to debauch the morals of a male victim adequately set forth a common law offense. And as early as Updegraph v. Commonwealth, 11 S. & R. 393, it was held that Christianity is a part of the common law and maliciously to vilify the Christian religion is an indictable offense.

14

[459] To endeavor merely to persuade a married woman to commit adultery is not indictable. Smith v. Commonwealth, 54 Pa. 209. The present defendant's criminal intent was evidenced by a number of overt acts beyond the mere oral solicitation of adultery. The vile and disgusting suggestions of sodomy alone and the otherwise persistent lewd, immoral and filthy language used by the defendant, take these cases out of the principle of the Smith case. Moreover potentially at least, defendant's acts injuriously affected public morality. The operator or any one on defendant's four-party telephone line could have listened in on the conversations, and at least two other persons in Mrs. Zivkovich's household heard some of defendant's immoral and obscene language over the telephone.

15

The name "Immoral Practices and Conduct" was ascribed to the offense and was endorsed on the indictments by the District Attorney. Whether the endorsement appropriately or adequately names the offense is unimportant (Com. of Penna. v. DeGrange, supra, p. 185); the factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.

16

Judgments and sentences affirmed.

17

DISSENTING OPINION BY WOODSIDE, J.:

18

Not unmindful of the reprehensible conduct of the appellant, I nevertheless cannot agree with the majority that what he did was a crime punishable under the laws of this Commonwealth.

19

The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth. They have done this by the application [460] of such general principles as "it is a crime to do anything which injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer;" and "whatever openly outrages decency and is injurious to public morals is a misdemeanor."

20

Not only have they declared it to be a crime to do an act "injuriously affecting public morality," but they have declared it to be a crime to do any act which has a "potentially" injurious effect on public morality.

21

Under the division of powers in our constitution it is for the legislature to determine what "injures or tends to injure the public."

22

One of the most important functions of a legislature is to determine what acts "require the state to interfere and punish the wrongdoer." There is no reason for the legislature to enact any criminal laws if the courts delegate to themselves the power to apply such general principles as are here applied to whatever conduct may seem to the courts to be injurious to the public.

23

There is no doubt that the common law is a part of the law of this Commonwealth, and we punish many acts under the common law. But after nearly two hundred years of constitutional government in which the legislature and not the courts have been charged by the people with the responsibility of deciding which acts do and which do not injure the public to the extent which requires punishment, it seems to me we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime.

24

When the legislature invades either the judicial or the executive fields, or the executive invades either the judicial or legislative fields, the courts stand ready to [461] stop them. But in matters of this type there is nothing to prevent our invasion of the legislative field except our own self restraint. There are many examples of how carefully the courts, with admirable self restraint, have fenced themselves in so they would not romp through the fields of the other branches of government. This case is not such an example.

25

Until the legislature says that what the defendant did is a crime, I think the courts should not declare it to be such.

26

I would therefore reverse the lower court and discharge the appellant.

27

GUNTHER, J. joins in this dissent.

1283 U.S. 25 (1931) 2

McBOYLE
v.
UNITED STATES.

3No. 552. 4

Supreme Court of United States.

5Argued February 26, 27, 1931. 6Decided March 9, 1931. 7

8

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.

9

Mr. Harry F. Brown for petitioner.

10

Mr. Claude R. Branch, Special Assistant to the Attorney General, with whom Solicitor General Thacher, Assistant Attorney General Dodds and Messrs. Harry S. Ridgely and W. Marvin Smith were on the brief, for the United States.

11

MR. JUSTICE HOLMES delivered the opinion of the Court.

12

The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years' imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. [26] Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: "Sec. 2. That when used in this Act: (a) The term 'motor vehicle' shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."

13

Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. The question is the meaning of the word 'vehicle' in the phrase "any other self-propelled vehicle not designed for running on rails." No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction, e.g., land and air, water being separately provided for, in the Tariff Act, September 22, 1922, c. 356, § 401 (b), 42 Stat. 858, 948. But in everyday speech 'vehicle' calls up the picture of a thing moving on land. Thus in Rev. Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used "as a means of transportation on land." And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 997, § 401 (b); 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For after including automobile truck, automobile wagon and motor cycle, the words "any other self-propelled vehicle not designed for running on rails" still indicate that a vehicle in the popular sense, that is a vehicle running on land, is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is admitted that they were not mentioned in the reports or in the debates in Congress. [27] It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.

14

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable 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. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U.S. 204, 209.

15

Judgment reversed.

1527 U.S. 41 (1999) 2

CITY OF CHICAGO
v.
MORALES et al.

3No. 97-1121. 4

United States Supreme Court.

5Argued December 9, 1998. 6Decided June 10, 1999. 7

 

8

CERTIORARI TO THE SUPREME COURT OF ILLINOIS

9

 

10

[42] [43] [44] Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined, post, p. 64. Kennedy, J., post, p. 69, and Breyer, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion, post, p. 73. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 98.

11

Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. Joranko, and Julian N. Henriques, Jr.

12

Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro.^[*]

13

[45] Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice Souter and Justice Ginsburg join.

14

In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang [46] members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.

15 16 17

 

18

Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.^[1]

19

The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "`the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members "`establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas; and . . . [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present . . . .' " Ibid. It further found that "`loitering in public places by [47] criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that "`[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city "`has an interest in discouraging all persons from loitering in public places with criminal gang members.' " Ibid.

20

The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place' " is a "`criminal street gang membe[r].' " Second, the persons must be "`loitering,' " which the ordinance defines as "`remain[ing] in any one place with no apparent purpose.' " Third, the officer must then order "`all' " of the persons to disperse and remove themselves "`from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid.^[2]

21

[48] Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.^[3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,^[4] and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a—67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated [49] areas." Id., at 68a—69a. The city, however, does not release the locations of these "designated areas" to the public.^[5]

22 23 24

 

25

During the three years of its enforcement,^[6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.^[7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.^[8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct [50] is prohibited, and it encourages arbitrary and capricious enforcement by police."^[9]

26

The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,^[10] consolidated and affirmed other pending appeals in accordance with Youkhana,^[11] and reversed the convictions of respondents Gutierrez, Morales, and others.^[12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.^[13]

27

The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid.

28

In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated [51] to cause harm.^[14] "Moreover, the definition of `loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."^[15]

29

We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.

30 31 32

 

33

The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods."^[16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt [52] that a law that directly prohibited such intimidating conduct would be constitutional,^[17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague.

34

We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.^[18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).

35

While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct [53] protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).

36

On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.^[19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).^[20] [54] Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).^[21]

37

[55] There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.^[22]

38

[56] Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.

39 40 41

 

42

"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ." Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance—"to remain in any one place with no apparent purpose"—does not. It is difficult to imagine how [57] any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?^[23]

43

Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.^[24] Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.^[25] However, state [58] courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.^[26]

44

The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do."^[27] We find this response unpersuasive for at least two reasons.

45

First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.^[28] If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 90 [59] (1965).^[29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.^[30]

46

Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395.

47

Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally [60] vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971).

48 49 50

 

51

The broad sweep of the ordinance also violates "`the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she "shall"—order them to disperse.

52

Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair notice, [61] see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose."

53

As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.^[31] "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447, 455 (1905).

54

Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.

55

Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons [62] to disperse under the ordinance.^[32] Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene.

56

Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.

57

It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,^[33] or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.^[34] It applies to everyone in the city [63] who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.

58

Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.

59

Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city [64] safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.

60 61 62

 

63

In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."^[35] 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.

64

Accordingly, the judgment of the Supreme Court of Illinois is

65

Affirmed.

66

Justice O'Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment.

67

I agree with the Court that Chicago's Gang Congregation Ordinance, Chicago Municipal Code § 8-4—015 (1992) (gang loitering ordinance or ordinance) is unconstitutionally vague. A penal law is void for vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" or fails to [65] establish guidelines to prevent "arbitrary and discriminatory enforcement" of the law. Kolender v. Lawson, 461 U. S. 352, 357 (1983). Of these, "the more important aspect of the vagueness doctrine `is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574-575 (1974)). I share Justice Thomas' concern about the consequences of gang violence, and I agree that some degree of police discretion is necessary to allow the police "to perform their peace keeping responsibilities satisfactorily." Post, at 109 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct "`a standardless sweep . . . to pursue their personal predilections.' " Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575).

68

The ordinance at issue provides:

69

"Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section." App. to Pet. for Cert. 61a.

70

 

71

To "[l]oiter," in turn, is defined in the ordinance as "to remain in any one place with no apparent purpose." Ibid. The Illinois Supreme Court declined to adopt a limiting construction of the ordinance and concluded that the ordinance vested "absolute discretion to police officers." 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is bound by the Illinois Supreme Court's construction of the ordinance. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949).

72

As it has been construed by the Illinois court, Chicago's gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement [66] officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on the street has a general "purpose"—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible. Under this construction the police do not have to decide that an individual is "threaten[ing] the public peace" to issue a dispersal order. See post, at 107 (Thomas, J., dissenting). Any police officer in Chicago is free, under the Illinois Supreme Court's construction of the ordinance, to order at his whim any person standing in a public place with a suspected gang member to disperse. Further, as construed by the Illinois court, the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or "other location open to the public, whether publicly or privately owned." Chicago Municipal Code § 8-4—015(c)(5) (1992).

73

To be sure, there is no violation of the ordinance unless a person fails to obey promptly the order to disperse. But, a police officer cannot issue a dispersal order until he decides that a person is remaining in one place "with no apparent purpose," and the ordinance provides no guidance to the officer on how to make this antecedent decision. Moreover, the requirement that police issue dispersal orders only when they "reasonably believ[e]" that a group of loiterers includes a gang member fails to cure the ordinance's vague aspects. If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued. Cf. ante, at 62. But, the Illinois Supreme Court did not construe the ordinance to be so limited. See 177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62.

74

This vagueness consideration alone provides a sufficient ground for affirming the Illinois court's decision, and I agree [67] with Part V of the Court's opinion, which discusses this consideration. See ante, at 62 ("[T]hat the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue"); ibid. ("It is true .. . that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members"). Accordingly, there is no need to consider the other issues briefed by the parties and addressed by the plurality. I express no opinion about them.

75

It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today's holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a "harmful purpose," see ibid., from laws that target only gang members, see ibid., and from laws that incorporate limits on the area and manner in which the laws may be enforced, see ante, at 62-63. In addition, the ordinance here is unlike a law that "directly prohibit[s]" the "`presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways,' " that "`intimidates residents.' " Ante, at 51, 52 (quoting Brief for Petitioner 14). Indeed, as the plurality notes, the city of Chicago has several laws that do exactly this. See ante, at 52, n. 17. Chicago has even enacted a provision that "enables police officers to fulfill . . . their traditional functions," including "preserving the public peace." See post, at 106 (Thomas, J., dissenting). Specifically, [68] Chicago's general disorderly conduct provision allows the police to arrest those who knowingly "provoke, make or aid in making a breach of peace." See Chicago Municipal Code § 8-4—010 (1992).

76

In my view, the gang loitering ordinance could have been construed more narrowly. The term "loiter" might possibly be construed in a more limited fashion to mean "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Such a definition would be consistent with the Chicago City Council's findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court. See App. to Pet. for Cert. 60a—61a. As noted above, so would limitations that restricted the ordinance's criminal penalties to gang members or that more carefully delineated the circumstances in which those penalties would apply to nongang members.

77

The Illinois Supreme Court did not choose to give a limiting construction to Chicago's ordinance. To the extent it relied on our precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its applications because it was intentionally drafted in a vague manner, the Illinois court misapplied our precedents. See 177 Ill. 2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that the intent of the drafters determines whether a law is vague. Nevertheless, we cannot impose a limiting construction that a state supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court has held that "`[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it' " (citations and internal quotation marks omitted)); New York [69] v. Ferber, 458 U. S. 747, 769, n. 24 (1982) (noting that where the Court is "dealing with a state statute on direct review of a state-court decision that has construed the statute[,] [s]uch a construction is binding on us"). Accordingly, I join Parts I, II, and V of the Court's opinion and concur in the judgment.

78

Justice Kennedy, concurring in part and concurring in the judgment.

79

I join Parts I, II, and V of the Court's opinion and concur in the judgment.

80

I also share many of the concerns Justice Stevens expresses in Part IV with respect to the sufficiency of notice under the ordinance. As interpreted by the Illinois Supreme Court, the Chicago ordinance would reach a broad range of innocent conduct. For this reason it is not necessarily saved by the requirement that the citizen must disobey a police order to disperse before there is a violation.

81

We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given. Illustrative examples include when the police tell a pedestrian not to enter a building and the reason is to avoid impeding a rescue team, or to protect a crime scene, or to secure an area for the protection of a public official. It does not follow, however, that any unexplained police order must be obeyed without notice of the lawfulness of the order. The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; [70] nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose.

82

Justice Breyer, concurring in part and concurring in the judgment.

83

The ordinance before us creates more than a "minor limitation upon the free state of nature." Post, at 74 (Scalia, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any "location open to the public, whether publicly or privately owned," Chicago Municipal Code § 8-4—015(c)(5) (1992), i. e., any sidewalk, front stoop, public park, public square, lakeside promenade, hotel, restaurant, bowling alley, bar, barbershop, sports arena, shopping mall, etc., but with two, and only two, limitations: First, that person must be accompanied by (or must himself be) someone police reasonably believe is a gang member. Second, that person must have remained in that public place "with no apparent purpose." § 8-4—015(c)(1).

84

The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as the Court, ante, at 62, and Justice O'Connor, ante, at 65-66 (opinion concurring in part and concurring in judgment), point out, not a limitation at all. Since one always has some apparent purpose, the so-called limitation invites, in fact requires, the policeman to interpret the words "no apparent purpose" as meaning "no apparent purpose except for . . . ." And it is in the ordinance's delegation to the policeman of open-ended discretion to fill in that blank that the problem lies. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a "minor," "limitation upon the free state of nature."

85

[71] Nor does it violate "our rules governing facial challenges," post, at 74 (Scalia, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance's terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. The city of Chicago may be able validly to apply some other law to the defendants in light of their conduct. But the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, "It is a crime to do wrong," even to the worst of murderers. See Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) ("If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it").

86

Justice Scalia's examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law's constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733, 756 (1974) ("[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.

87

[72] One to whose conduct a statute clearly applies may not successfully challenge it for vagueness"). But I believe this ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide "sufficient minimal standards to guide law enforcement officers." See ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment).

88

I concede that this case is unlike those First Amendment "overbreadth" cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer's exercise of unchecked discretion, is more clearly their own.

89

This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from "conduct[ing] themselves in a manner annoying to persons passing by." The Court explained:

90

"It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. . . . It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id., at 614 (citation omitted).

91

 

92

[73] The ordinance in Coates could not constitutionally be applied whether or not the conduct of the particular defendants was indisputably "annoying" or of a sort that a different, more specific ordinance could constitutionally prohibit. Similarly, here the city might have enacted a different ordinance, or the Illinois Supreme Court might have interpreted this ordinance differently. And the Constitution might well have permitted the city to apply that different ordinance (or this ordinance as interpreted differently) to circumstances like those present here. See ante, at 67-68 (O'Connor, J., concurring in part and concurring in judgment). But this ordinance, as I have said, cannot be constitutionally applied to anyone.

93

Justice Scalia, dissenting.

94

The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the "freedom" of all citizens, but was not unconstitutional.

95

Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the "freedom" of all citizens, but was not unconstitutional.

96

Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated [74] in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their "turf." Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. See Chicago Municipal Code § 8-4—015 (1992). The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.

97

The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.

98 99 100

 

101

Respondents' consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.

102

[75] That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society:

103

"The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power. 

104

 

105

. . . . .

106

"Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule . . . . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . . . [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can [76] be accomplished only by the reiterated attacks of judicial functionaries." Democracy in America 73, 75-76 (R. Heffner ed. 1956).

107

 

108

As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488 (1923):

109

"We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding."

110

And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17, 20-22 (1960):

111

"The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. . . . This Court, as is the case with all federal courts, `has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of [77] constitutional law broader than is required by the precise facts to which it is to be applied.' . . .Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. . . . The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined."

112

It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion—which a federal court should never issue at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even non advisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?

113

I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have—except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747, 769-773 (1982)—required the facial challenge to be a go-forbroke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he establish [78] that the statute was unconstitutional in all its applications. (I say that is an eminently reasonable requirement, not only because we should not be holding a statute void in all its applications unless it is unconstitutional in all its applications, but also because unless it is unconstitutional in all its applications we do not even know, without conducting an as-applied analysis, whether it is void with regard to the very litigant before us—whose case, after all, was the occasion for undertaking this inquiry in the first place.^[1])

114

As we said in United States v. Salerno, 481 U. S. 739, 745 (1987):

115

"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum-

116

[79] stances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an `overbreadth' doctrine outside the limited context of the First Amendment." (Emphasis added.)^[2]

117

 

118

This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) (opinion for the Court by Stevens, J.) (statute not implicating First Amendment rights is invalid on its face if "it is unconstitutional in every conceivable application"); Schall v. Martin, 467 U. S. 253, 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29, 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 699 (1995) (opinion for the Court by Stevens, J.) (facial challenge asserts that a challenged statute or regulation is invalid "in every circumstance"); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. Sullivan, [80] 500 U. S. 173, 183 (1991); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (opinion of Kennedy, J.); Webster v. Reproductive Health Servs., 492 U. S. 490, 523-524 (1989) (O'Connor, J., concurring in part and concurring in judgment); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11-12 (1988).^[3] Unsurprisingly, given the clarity of our general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial challenges.^[4]

119

[81] I am aware, of course, that in some recent facial-challenge cases the Court has, without any attempt at explanation, created entirely irrational exceptions to the "unconstitutional in every conceivable application" rule, when the statutes at issue concerned hot-button social issues on which "informed opinion" was zealously united. See Romer v. Evans, 517 U. S. 620, 643 (1996) (Scalia, J., dissenting) (homosexual rights); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) (abortion rights). But the present case does not even lend itself to such a "political correctness" exception—which, though illogical, is at least predictable. It is not à la mode to favor gang members and associated loiterers over the beleaguered law-abiding residents of the inner city.

120

When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring respondents, who are challenging the ordinance, to show that it is invalid in all its applications, they have required petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law's application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents' facial challenge by conjuring up a single valid application of the law. My contribution would go something like this:^[5] Tony, a member of the Jets criminal street gang, is standing [82] alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement—not entirely coherent, but evidently intended to be rude—"Gee, Officer Krupke, krup you." A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it,I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents' facial challenge to the ordinance's vagueness.

121

Of course respondents would still be able to claim that the ordinance was vague as applied to them. But the ultimate demonstration of the inappropriateness of the Court's holding of facial invalidity is the fact that it is doubtful whether some of these respondents could even sustain an as-applied challenge on the basis of the majority's own criteria. For instance, respondent Jose Renteria—who admitted that he was a member of the Satan Disciples gang—was observed by the arresting officer loitering on a street corner with other gang members. The officer issued a dispersal order, but when she returned to the same corner 15 to 20 minutes later, Renteria was still there with his friends, whereupon he was arrested. In another example, respondent Daniel Washington and several others—who admitted they were members of the Vice Lords gang—were observed by the arresting officer loitering in the street, yelling at passing vehicles, stopping traffic, and preventing pedestrians from using [83] the sidewalks. The arresting officer issued a dispersal order, issued another dispersal order later when the group did not move, and finally arrested the group when they were found loitering in the same place still later. Finally, respondent Gregorio Gutierrez—who had previously admitted to the arresting officer his membership in the Latin Kings gang—was observed loitering with two other men. The officer issued a dispersal order, drove around the block, and arrested the men after finding them in the same place upon his return. See Brief for Petitioner 7, n. 5; Brief for United States as Amicus Curiae 16, n. 11. Even on the majority's assumption that to avoid vagueness it must be clear to the object of the dispersal order ex ante that his conduct is covered by the ordinance, it seems most improbable that any of these as-applied challenges would be sustained. Much less is it possible to say that the ordinance is invalid in all its applications.

122 123 124

 

125

The plurality's explanation for its departure from the usual rule governing facial challenges is seemingly contained in the following statement: "[This] is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights . . . . When vagueness permeates the text of such a law, it is subject to facial attack." Ante, at 55 (emphasis added). The proposition is set forth with such assurance that one might suppose that it repeats some well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) [H11501] (infringement of constitutionally protected right) [H11501] (vagueness) [H11505] (entitlement to facial invalidation). There is no such formula; the plurality has made it up for this case, as the absence of any citation demonstrates.

126

But no matter. None of the three factors that the plurality relies upon exists anyway. I turn first to the support for the proposition that there is a constitutionally protected right to loiter—or, as the plurality more favorably describes [84] it, for a person to "remain in a public place of his choice." Ante, at 54. The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally un protected, activities as doing (ugh!) business: "This is not an ordinance that simply regulates business behavior and contains a scienter requirement. . . . It is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights." Ante, at 55 (internal quotation marks omitted). (Poor Alexander Hamilton, who has seen his "commercial republic" devolve, in the eyes of the plurality, at least, into an "indolent republic," see The Federalist No. 6, p. 56; No. 11, pp. 84-91 (C. Rossiter ed. 1961).)

127

Of course every activity, even scratching one's head, can be called a "constitutional right" if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without "rational basis." See FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). But using the term in that sense utterly impoverishes our constitutional discourse. We would then need a new term for those activities—such as political speech or religious worship—that cannot be forbidden even with rational basis.

128

The plurality tosses around the term "constitutional right" in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter. Justice Thomas recounts the vast historical tradition of criminalizing the activity. Post, at 102-106 (dissenting opinion). It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the Fourteenth Amendment. For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the "right" result. Its opinion blithely proclaims: "Neither this history nor the scholarly [85] compendia in Justice Thomas' dissent, [ibid.,] persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause." Ante, at 54, n. 20. The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of socalled "substantive due process") is in my view judicial usurpation. But we have, recently at least, sought to limit the damage by tethering the courts' "right-making" power to an objective criterion. In Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997), we explained our "established method" of substantive due process analysis: carefully and narrowly describing the asserted right, and then examining whether that right is manifested in "[o]ur Nation's history, legal traditions, and practices." See also Collins v. Harker Heights, 503 U. S. 115, 125-126 (1992); Michael H. v. Gerald D., 491 U. S. 110, 122-123 (1989); Moore v. East Cleveland, 431 U. S. 494, 502-503 (1977). The plurality opinion not only ignores this necessary limitation, but it leaps far beyond any substantive-due-process atrocity we have ever committed, by actually placing the burden of proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a constitutional right, contenting itself with a (transparently inadequate) explanation of why the historical record of laws banning loitering does not positively contradict that proposition,^[6] and the (transparently erroneous) assertion that the city of Chicago appears to have conceded the [86] point.^[7] It is enough for the Members of the plurality that "history . . . [fails to] persuad[e] us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause," ante, at 54, n. 20 (emphasis added); they apparently think it quite unnecessary for anything to persuade them that it is.^[8]

129

It would be unfair, however, to criticize the plurality's failed attempt to establish that loitering is a constitutionally [87] protected right while saying nothing of the concurrences. The plurality at least makes an attempt. The concurrences, on the other hand, make no pretense at attaching their broad "vagueness invalidates" rule to a liberty interest. As far as appears from Justice O'Connor's and Justice Breyer's opinions, no police officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class of "gang members") unless the standards for the issuance of that order are precise. No modern urban society—and probably none since London got big enough to have sewers—could function under such a rule. There are innumerable reasons why it may be important for a constable to tell a pedestrian to "move on"—and even if it were possible to list in an ordinance all of the reasons that are known, many are simply unpredictable. Hence the (entirely reasonable) Rule of the city of New York which reads: "No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks and Recreation] Department employee, indicated verbally, by gesture or otherwise." 56 RCNY § 1-03(c)(1) (1996). It is one thing to uphold an "as-applied" challenge when a pedestrian disobeys such an order that is unreasonable—or even when a pedestrian asserting some true "liberty" interest (holding a political rally, for instance) disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting "lawful orders" is void in all its applications demands more than a safe and orderly society can reasonably deliver.

130

Justice Kennedy apparently recognizes this, since he acknowledges that "some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given," including, for example, an order "tell[ing] a pedestrian not to enter a building" when the reason is "to avoid impeding a rescue team." Ante, at 69 (opinion concurring in part and concurring in judgment). [88] But his only explanation of why the present interference with the "right to loiter" does not fall within that permitted scope of action is as follows: "The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance." Ibid. I have not the slightest idea what this means. But I do understand that the follow-up explanatory sentence, showing how this principle invalidates the present ordinance, applies equally to the rescue-team example that Justice Kennedy thinks is constitutional—as is demonstrated by substituting for references to the facts of the present case (shown in italics) references to his rescue-team hypothetical (shown in brackets): "A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order [order not to enter a building] based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating [what is going on in the building]; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose [the impeding of a rescue team]." Ante, at 69-70.

131 132 133

 

134

I turn next to that element of the plurality's facialchallenge formula which consists of the proposition that this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. See ante, at 47, 50-51, 53-55, 57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65, 66, 68 (O'Connor, J., concurring in part and concurring in judgment); ante, at 69-70 (Kennedy, J., concurring in part and concurring in judgment); ante, at 72-73 (Breyer, J., concurring in part and concurring in judgment). That is not what the ordinance provides. The [89] only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i. e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order.

135

The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to "promptly obey" an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, "a person must disobey the officer's order." Ante, at 47 (emphasis added). No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.

136 137 138

 

139

Finally, I address the last of the three factors in the plurality's facial-challenge formula: the proposition that the ordinance is vague. It is not. Even under the ersatz overbreadth [90] standard applied in Kolender v. Lawson, 461 U. S. 352, 358, n. 8 (1983), which allows facial challenges if a law reaches "a substantial amount of constitutionally protected conduct," respondents' claim fails because the ordinance would not be vague in most or even a substantial number of applications. A law is unconstitutionally vague if its lack of definitive standards either (1) fails to apprise persons of ordinary intelligence of the prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement. See, e. g., Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).

140

The plurality relies primarily upon the first of these aspects. Since, it reasons, "the loitering is the conduct that the ordinance is designed to prohibit," and "an officer may issue an order only after prohibited conduct has already occurred," ante, at 58, 59, the order to disperse cannot itself serve "to apprise persons of ordinary intelligence of the prohibited conduct." What counts for purposes of vagueness analysis, however, is not what the ordinance is "designed to prohibit," but what it actually subjects to criminal penalty. As discussed earlier, that consists of nothing but the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct. The plurality's suggestion that even the dispersal order itself is unconstitutionally vague, because it does not specify how far to disperse(!), see ante, at 59, scarcely requires a response.^[9] If it were true, it would render unconstitutional for vagueness many of the Presidential proclamations issued under that provision of the United States Code which requires the President, [91] before using the militia or the Armed Forces for law enforcement, to issue a proclamation ordering the insurgents to disperse. See 10 U. S. C. § 334. President Eisenhower's proclamation relating to the obstruction of court-ordered enrollment of black students in public schools at Little Rock, Arkansas, read as follows: "I . . .command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith." Presidential Proclamation No. 3204, 3 CFR 132 (1954-1958 Comp.). See also Presidential Proclamation No. 3645, 3 CFR 103 (1964-1965 Comp.) (ordering those obstructing the civil rights march from Selma to Montgomery, Alabama, to "disperse . . . forthwith"). See also Boos v. Barry, 485 U. S. 312, 331 (1988) (rejecting overbreadth/vagueness challenge to a law allowing police officers to order congregations near foreign embassies to disperse); Cox v. Louisiana, 379 U. S. 536, 551 (1965) (rejecting vagueness challenge to the dispersal-order prong of a breach-of-the-peace statute and describing that prong as "narrow and specific").

141

For its determination of unconstitutional vagueness, the Court relies secondarily—and Justice O'Connor's and Justice Breyer's concurrences exclusively—upon the second aspect of that doctrine, which requires sufficient specificity to prevent arbitrary and discriminatory law enforcement. See ante, at 60 (majority opinion); ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment); ante, at 72 (Breyer, J., concurring in part and concurring in judgment). In discussing whether Chicago's ordinance meets that requirement, the Justices in the majority hide behind an artificial construct of judicial restraint. They point to the Supreme Court of Illinois' statement that the "apparent purpose" standard "provides absolute discretion to police officers to decide what activities constitute loitering," 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997), and protest that it would be wrong to construe the language of the ordinance more narrowly than did the State's highest court. Ante, at [92] 61, 63 (majority opinion); ante, at 68 (O'Connor, J., concurring in part and concurring in judgment). The "absolute discretion" statement, however, is nothing more than the Illinois Supreme Court's characterization of what the language achieved—after that court refused (as I do) to read in any limitations that the words do not fairly contain. It is not a construction of the language (to which we are bound) but a legal conclusion (to which we most assuredly are not bound).

142

The criteria for issuance of a dispersal order under the Chicago ordinance could hardly be clearer. First, the law requires police officers to "reasonably believ[e]" that one of the group to which the order is issued is a "criminal street gang member." This resembles a probable-cause standard, and the Chicago Police Department's General Order 92-4 (1992)—promulgated to govern enforcement of the ordinance—makes the probable-cause requirement explicit.^[10] Under the Order, officers must have probable cause to believe that an individual is a member of a criminal street gang, to be substantiated by the officer's "experience and knowledge of the alleged offenders" and by "specific, documented and reliable information" such as reliable witness testimony or an individual's admission of gang membership or display of distinctive colors, tattoos, signs, or other markings worn by members of particular criminal street gangs. App. to Pet. for Cert. 67a—69a, 71a—72a.

143

Second, the ordinance requires that the group be "remain[ing] in any one place with no apparent purpose." Justice O'Connor's assertion that this applies to "any person standing [93] in a public place," ante, at 66, is a distortion. The ordinance does not apply to "standing," but to "remain[ing]"— a term which in this context obviously means "[to] endure or persist," see American Heritage Dictionary 1525 (1992). There may be some ambiguity at the margin, but "remain[ing] in one place" requires more than a temporary stop, and is clear in most of its applications, including all of those represented by the facts surrounding respondents' arrests described supra, at 82-83.

144

As for the phrase "with no apparent purpose": Justice O'Connor again distorts this adjectival phrase, by separating it from the word that it modifies. "[A]ny person standing on the street," her concurrence says, "has a general `purpose'—even if it is simply to stand," and thus "the ordinance permits police officers to choose which purposes are permissible. " Ante, at 66. But Chicago police officers enforcing the ordinance are not looking for people with no apparent purpose (who are regrettably in oversupply); they are looking for people who "remain in any one place with no apparent purpose"—that is, who remain there without any apparent reason for remaining there. That is not difficult to perceive.^[11]

145

The Court's attempt to demonstrate the vagueness of the ordinance produces the following peculiar statement: "The `no apparent purpose' standard for making [the decision to [94] issue an order to disperse] is inherently subjective because its application depends on whether some purpose is `apparent' to the officer on the scene." Ante, at 62. In the Court's view, a person's lack of any purpose in staying in one location is presumably an objective factor, and what the ordinance requires as a condition of an order to disperse— the absence of any apparent purpose—is a subjective factor. This side of the looking glass, just the opposite is true.

146

Elsewhere, of course, the Court acknowledges the clear, objective commands of the ordinance, and indeed relies upon them to paint it as unfair:

147

"In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she `shall'—order them to disperse." Ante, at 60.

148

 

149

Quite so. And the fact that this clear instruction to the officers "reach[es] a substantial amount of innocent conduct," ibid., would be invalidating if that conduct were constitutionally protected against abridgment, such as speech or the practice of religion. Remaining in one place is not so protected, and so (as already discussed) it is up to the citizens of Chicago—not us—to decide whether the trade-off is worth it.^[12]

150

[95] Justice Breyer's concurrence tries to perform the impossible feat of affirming our unquestioned rule that a criminal statute that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U. S. 733 (1974), while at the same time asserting that a statute which "delegates too much discretion to a police officer" is invalid in all its applications, even where the officer uses his discretion "wisely," ante, at 71. But the vagueness that causes notice to be inadequate is the very same vagueness that causes "too much discretion" to be lodged in the enforcing officer. Put another way: A law that gives the policeman clear guidance in all cases gives the public clear guidance in all cases as well. Thus, what Justice Breyer gives with one hand, he takes away with the other. In his view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators because of inadequate notice, but are unenforceable against them "because the policeman enjoys too much discretion in every case," ibid. This is simply contrary to our case law, including Parker v. Levy, supra.^[13]

151

[96]

152 153

 

154

The plurality points out that Chicago already has several laws that reach the intimidating and unlawful gang-related conduct the ordinance was directed at. See ante, at 52, n. 17. The problem, of course, well recognized by Chicago's city council, is that the gang members cease their intimidating and unlawful behavior under the watchful eye of police officers, but return to it as soon as the police drive away. The only solution, the council concluded, was to clear the streets of congregations of gangs, their drug customers, and their associates.

155

Justice O'Connor's concurrence proffers the same empty solace of existing laws useless for the purpose at hand, see ante, at 67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be constitutional. It says that Chicago could, for example, enact a law that "directly prohibit[s] the presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways, that intimidates residents." Ante, at 67 (internal quotation marks omitted). (If the majority considers the present ordinance too vague, it would be fun to see what it makes of "a large collection of obviously brazen, insistent, and lawless gang members.") This prescription of the concurrence is largely a quotation from the plurality—which itself answers the concurrence's suggestion that such a law would be helpful by pointing out that the city already "has several laws that serve this purpose." Ante, at 52, n. 17 (plurality opinion) (citing extant laws against "intimidation," "street gang criminal drug conspiracy," and "mob action"). The problem, again, is that the intimidation and lawlessness do not occur when the police are in sight.

156

[97] Justice O'Connor's concurrence also proffers another cure: "If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued." Ante, at 66 (the Court agrees that this might be a cure, see ante, at 62). But the ordinance already specifies to whom the order can be issued: persons remaining in one place with no apparent purpose in the company of a gang member. And if "remain[ing] in one place with no apparent purpose" is so vague as to give the police unbridled discretion in controlling the conduct of nongang members, it surpasses understanding how it ceases to be so vague when applied to gang members alone. Surely gang members cannot be decreed to be outlaws, subject to the merest whim of the police as the rest of us are not.

157 158 159

 

160

The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority's real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As Justice O'Connor's concurrence says with disapprobation, "the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or other location open to the public." Ante, at 66 (internal quotation marks omitted).

161

But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, [98] and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden—riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to "hang out" with a gang member is necessary to eliminate pervasive gang crime and intimidation—and that the elimination of the one is worth the deprivation of the other. This Court has no business second-guessing either the degree of necessity or the fairness of the trade.

162

I dissent from the judgment of the Court.

163

Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.

164

The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. "[A]ny fool would know that a particular category of conduct would be within [its] reach." Kolender v. Lawson, 461 U. S. 352, 370 (1983) (White, J.,dissenting). Nor does it violate the Due Process Clause. The asserted "freedom to loiter for innocent purposes," ante, at 53 (plurality opinion), is in no way "`deeply rooted in this Nation's history and tradition,' " Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (citation omitted). I dissent.

165 166 167

 

168

The human costs exacted by criminal street gangs are inestimable. In many of our Nation's cities, gangs have "[v]irtually [99] overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance, Monograph: Urban Street Gang Enforcement 3 (1997). Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. See U. S. Dept. of Justice, Attorney General's Report to the President, Coordinated Approach to the Challenge of Gang Violence: A Progress Report 1 (Apr. 1996) ("From the small business owner who is literally crippled because he refuses to pay `protection' money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking gangs, the harmful impact of gang violence . . . is both physically and psychologically debilitating").

169

The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children's fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 (Sept. 1996). Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides. Id., at 4-5.^[1] Many [100] of these criminal incidents and homicides result from gang "turf battles," which take place on the public streets and place innocent residents in grave danger. See U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, Research in brief, C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec. 1993); U. S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth Gang Drug Trafficking and Homicide: Policy and Program Implications (Dec. 1997); see also Testimony of Steven R. Wiley, Chief, Violent Crimes and Major Offenders Section, FBI, Hearing on S. 54 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13 (1997) ("While street gangs may specialize in entrepreneurial activities like drug-dealing, their gang-related lethal violence is more likely to grow out of turf conflicts").

170

Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D'Ivory Gordon explained that she struggled just to walk to work:

171

"When I walk out my door, these guys are out there . . . .

172

. . . . .

173

"They watch you. . . . They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me . . . .

174

". . . I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them." Transcript of Proceedings before the City Council of [101] Chicago, Committee on Police and Fire 66-67 (May 15, 1992) (hereinafter Transcript).

175

 

176

Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: "We used to have a nice neighborhood. We don't have it anymore . . . . I am scared to go out in the daytime. . . . [Y]ou can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler." Id., at 93-95. Another long-time resident testified:

177

"I have never had the terror that I feel everyday when I walk down the streets of Chicago. . . .

178

. . . . .

179

"I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it's come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money or anything like that." Id., at 124-125.

180

 

181

Following these hearings, the council found that "criminal street gangs establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas." App. to Pet. for Cert. 60a. It further found that the mere presence of gang members "intimidate[s] many law abiding citizens" and "creates a justifiable fear for the safety of persons and property in the area." Ibid. It is the product of this democratic process—the council's attempt to address these social ills—that we are asked to pass judgment upon today.

182 183 184

 

185

As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police [102] have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it. The plurality, however, concludes that the city's commonsense effort to combat gang loitering fails constitutional scrutiny for two separate reasons—because it infringes upon gang members' constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter conclusion. I respectfully disagree.

186 187 188

 

189

We recently reconfirmed that "[o]ur Nation's history, legal traditions, and practices . . . provide the crucial `guide posts for responsible decision-making' . . . that direct and restrain our exposition of the Due Process Clause." Glucksberg, 521 U. S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion)). Only laws that infringe "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition' " offend the Due Process Clause. Glucksberg, supra, at 720-721.

190

The plurality asserts that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment." Ante, at 53. Yet it acknowledges—as it must—that "antiloitering ordinances have long existed in this country." Ante, at 53, n. 20; see also 177 Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below) ("Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing `undesirable persons' from public before they have the opportunity to engage in criminal activity"). In derogation of the framework we articulated only two Terms ago in Glucksberg, the plurality asserts that this history fails to "persuad[e] us that the right to engage in loitering that is entirely harmless . . . is not a part of the liberty protected by the Due Process Clause." Ante, at 54, [103] n. 20. Apparently, the plurality believes it sufficient to rest on the proposition that antiloitering laws represent an anachronistic throwback to an earlier, less sophisticated, era. For example, it expresses concern that some antivagrancy laws carried the penalty of slavery. Ibid. But this fact is irrelevant to our analysis of whether there is a constitutional right to loiter for innocent purposes. This case does not involve an antiloitering law carrying the penalty of slavery. The law at issue in this case criminalizes the failure to obey a police officer's order to disperse and imposes modest penalties, such as a fine of up to $500 and a prison sentence of up to six months.

191

The plurality's sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment's Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (reprint 1972) (discussing history of English vagrancy laws); see also Papachristou v. Jacksonville, 405 U. S. 156, 161-162 (1972) (recounting history of vagrancy laws). The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.^[2] Vagrancy laws [104] were common in the decades preceding the ratification of the Fourteenth Amendment,^[3] and remained on the books long after.^[4]

192

[105] Tellingly, the plurality cites only three cases in support of the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only one—decided more than 100 years after the ratification of the Fourteenth Amendment— actually addressed the validity of a vagrancy ordinance. That case, Papachristou, supra, contains some dicta that can be read to support the fundamental right that the plurality asserts.^[5] However, the Court in Papachristou did not undertake the now-accepted analysis applied in substantive due process cases—it did not look to tradition to define the rights protected by the Due Process Clause. In any event, a careful reading of the opinion reveals that the Court never said anything about a constitutional right. The Court's holding was that the antiquarian language employed in the vagrancy ordinance at issue was unconstitutionally vague. See id., at 162-163. Even assuming, then, that Papachristou was correctly decided as an original matter—a doubtful proposition—it [106] does not compel the conclusion that the Constitution protects the right to loiter for innocent purposes. The plurality's contrary assertion calls to mind the warning that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. . . . [We] should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare." Moore, 431 U. S., at 544 (White, J., dissenting). When "the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority." Ibid.

193 194 195

 

196

The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality's view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.

197 198 199

 

200

At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers' failure to obey a police officer's order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs [107] 59 (1845) ("As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great"); E. Freund, Police Power § 86, p. 87 (1904) ("The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority"). Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.^[6]

201

In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided:

202

[108] "It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby there unto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, side- walks, parks and places. " Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added).

203

 

204

See also J. Crocker, Duties of Sheriffs, Coroners and Constables § 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence" (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.^[7] Even the ABA Standards for [109] Criminal Justice recognize that "[i]n day-to-day police experience there are innumerable situations in which police are called upon to order people not to block the sidewalk, not to congregate in a given place, and not to `loiter' . . . . The police may suspect the loiterer of considering engaging in some form of undesirable conduct that can be at least temporarily frustrated by ordering him or her to `move on.' " Standard 1-3.4(d), p. 1.88, and comments (2d ed. 1980, Supp. 1986).^[8]

205

In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he "observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place," App. to Pet. for Cert. 61a, Chicago's ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as "probable cause" [110] and "reasonable suspicion," so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U. S. 690, 695, 700 (1996) ("Articulating precisely what `reasonable suspicion' and `probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . . [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists" (citations and internal quotation marks omitted)). In sum, the Court's conclusion that the ordinance is impermissibly vague because it "`necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat,' " ante, at 60, cannot be reconciled with common sense, longstanding police practice, or this Court's Fourth Amendment jurisprudence.

206

The illogic of the Court's position becomes apparent when it opines that the ordinance's dispersal provision "would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members." Ante, at 62 (footnote omitted). See also ante, at 67 (O'Connor, J., concurring in part and concurring in judgment) (endorsing Court's proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem "with respect to the adequacy of notice to the complainant that his conduct is proscribed," Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982) (footnote omitted), the alternative proposal does not incorporate a scienter requirement. If the ordinance's prohibition were limited [111] to loitering with "an apparently harmful purpose," the criminality of the conduct would continue to depend on its external appearance, rather than the loiterer's state of mind. See Black's Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to signify the defendant's guilty knowledge"). For this reason, the proposed alternative would neither satisfy the standard suggested in Hoffman Estates nor serve to channel police discretion. Indeed, an ordinance that required officers to ascertain whether a group of loiterers have "an apparently harmful purpose" would require them to exercise more discretion, not less. Furthermore, the ordinance in its current form—requiring the dispersal of groups that contain at least one gang member—actually vests less discretion in the police than would a law requiring that the police disperse groups that contain only gang members. Currently, an officer must reasonably suspect that one individual is a member of a gang. Under the plurality's proposed law, an officer would be required to make such a determination multiple times.

207

In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid").

208

[112]

209 210

 

211

The plurality's conclusion that the ordinance "fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted," ante, at 60, is similarly untenable. There is nothing "vague" about an order to disperse.^[9] While "we can never expect mathematical certainty from our language," Grayned v. City of Rockford, 408 U. S. 104, 110 (1972), itis safe to assume that the vast majority of people who are ordered by the police to "disperse and remove themselves from the area" will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a.

212

Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, "in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971). I subscribe to the view of retired Justice White—"If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face." Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such a case. As the Illinois Supreme Court recognized, "persons of ordinary intelligence may maintain a common and accepted [113] meaning of the word `loiter.' " 177 Ill. 2d, at 451, 687 N. E. 2d, at 61.

213

Justice Stevens' contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally protected conduct—there is no fundamental right to loiter. It is also anomalous to characterize loitering as "innocent" conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered "innocent." Similarly, when a term has long been used to describe criminal conduct, the need to subject it to the "more stringent vagueness test" suggested in Hoffman Estates, 455 U. S., at 499, dissipates, for there is no risk of a trap for the unwary. The term "loiter" is no different from terms such as "fraud," "bribery," and "perjury." We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.^[10]

214

The plurality also concludes that the definition of the term loiter—"to remain in any one place with no apparent purpose," [114] see 177 Ill.2d, at 445, 687 N. E. 2d, at 58—fails to provide adequate notice.^[11] "It is difficult to imagine," the plurality posits, "how any citizen of the city of Chicago standing in a public place . . .would know if he or she had an `apparent purpose.' " Ante, at 56-57. The plurality underestimates the intellectual capacity of the citizens of Chicago. Persons of ordinary intelligence are perfectly capable of evaluating how outsiders perceive their conduct, and here "[i]t is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [loitering] and that would be covered by the statute." See Smith v. Goguen, 415 U. S. 566, 584 (1974) (White, J., concurring in judgment). Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have "no apparent purpose." In any event, because this is a facial challenge, the plurality's ability to hypothesize that some individuals, in some circumstances, may be unable to ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to determine whether the ordinance is "vague in all of its applications." Hoffman Estates, supra, at 497. The answer is unquestionably no.

215 216 217

 

218

Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so— the people who will have to live with the consequences of [115] today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop." Transcript 126. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens, ante, at 54, elevates above all else—the "`freedom of movement.' " And that is a shame. I respectfully dissent.

219

[*] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark O. Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W. Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W. Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry.

220

Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.

221

[1] The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in Justice Thomas' dissenting opinion. Post, at 100-101.

222

[2] The ordinance states in pertinent part:

223

"(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.

224

"(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.

225

"(c) As used in this Section:

226

"(1) `Loiter' means to remain in any one place with no apparent purpose.

227

"(2) `Criminal street gang' means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

228

. . . . .

229

"(5) `Public place' means the public way and any other location open to the public, whether publicly or privately owned.

230

"(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.

231

"In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4—120 of this Code." Chicago Municipal Code § 8-4—015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a—63a.

232

[3] As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself." 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59.

233

[4] Presumably, these officers would also be able to arrest all nongang members who violate the ordinance.

234

[5] Tr. of Oral Arg. 22-23.

235

[6] The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43.

236

[7] Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998).

237

The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the "hotly contested debate raging among . . . experts over the causes of the decline in crime in New York City and nationally").

238

[8] See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995).

239

[9] Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a.

240

[10] Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995).

241

[11] Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a.

242

[12] Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a.

243

[13] Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42.

244

[14] "The ordinance defines `loiter' to mean `to remain in any one place with no apparent purpose.' Chicago Municipal Code § 8-4—015(c)(1) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer." 177 Ill. 2d, at 451— 452, 687 N. E. 2d, at 60-61.

245

[15] It stated: "Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly, the city council crafted an exceptionally broad ordinance which could be used to sweep these intolerable and objectionable gang members from the city streets." Id., at 458, 687 N. E. 2d, at 64.

246

[16] Brief for Petitioner 14.

247

[17] In fact the city already has several laws that serve this purpose. See, e. g., Ill. Comp. Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992).

248

[18] Brief for Petitioner 17.

249

[19] See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both Justice Scalia, post, at 83-86 (dissenting opinion), and Justice Thomas, post, at 102-106 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra.

250

[20] Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the "`Slavery acts' " provided for a 2-year enslavement period for anyone who "`liveth idly and loiteringly, by the space of three days.' " Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U. S., at 161-162. These laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See Recent Developments, Constitutional Attacks on Vagrancy Laws, 20 Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include "`any runaway, stubborn servant or child' " and "`a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.' " T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50-69 (1998). Neither this history nor the scholarly compendia in Justice Thomas' dissent, post, at 102-106, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause.

251

[21] The freewheeling and hypothetical character of Justice Scalia's discussion of liberty is epitomized by his assumption that citizens of Chicago, who were once "free to drive about the city" at whatever speed they wished, were the ones who decided to limit that freedom by adopting a speed limit. Post, at 73. History tells quite a different story.

252

In 1903, the Illinois Legislature passed "An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois." That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but only 8,000 cars (both private and commercial) registered in the entire United States. See Ward's Automotive Yearbook 230 (1990). Even though the number of cars in the country had increased to 77,400 by 1905, ibid., it seems quite clear that it was pedestrians, rather than drivers, who were primarily responsible for Illinois' decision to impose a speed limit.

253

[22] The burden of the first portion of Justice Scalia's dissent is virtually a facial challenge to the facial challenge doctrine. See post, at 74-83. He first lauds the "clarity of our general jurisprudence" in the method for assessing facial challenges and then states that the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must "establish that no set of circumstances exists under which the Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739, 745 (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id., at 745, n. 3, the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate.

254

We need not, however, resolve the viability of Salerno `s dictum, because this case comes to us from a state—not a federal—court. When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984). When a state court has reached the merits of a constitutional claim, "invoking prudential limitations on [the respondent's] assertion of jus tertii would serve no functional purpose." City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 243 (1983) (internal quotation marks omitted).

255

Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases—a proposition which is doubtful—state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989). Justice Scalia's assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts "essential principles of federalism." See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994).

256

[23] The Solicitor General, while supporting the city's argument that the ordinance is constitutional, appears to recognize that the ordinance cannot be read literally without invoking intractable vagueness concerns. "[T]he purpose simply to stand on a corner cannot be an `apparent purpose' under the ordinance; if it were, the ordinance would prohibit nothing at all." Brief for United States as Amicus Curiae 12-13.

257

[24] 177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial courts that invalidated the ordinance gave the following illustration: "Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the `basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 48a—49a.

258

[25] See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826, 827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381, 394-395, 758 P. 2d 1046, 1052 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act).

259

[26] See, e. g., State v. Richard, 108 Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof").

260

[27] Brief for Petitioner 31.

261

[28] In this way, the ordinance differs from the statute upheld in Colten v. Kentucky, 407 U. S. 104, 110 (1972). There, we found that the illegality of the underlying conduct was clear. "Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under . . . Kentucky's statute if he fails to obey an order to move on." Ibid.

262

[29] "Literally read . . . 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." 382 U. S.,at 90.

263

[30] As we have noted in a similar context: "If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Wright v. Georgia, 373 U. S. 284, 292 (1963).

264

[31] This critical fact distinguishes this case from Boos v. Barry, 485 U. S. 312, 329-330 (1988). There, we noted that the text of the relevant statute, read literally,may have been void for vagueness both on notice and on discretionary enforcement grounds. We then found, however, that the Court of Appeals had "provided a narrowing construction that alleviates both of these difficulties." Ibid.

265

[32] It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.

266

[33] Justice Thomas' dissent overlooks the important distinction between this ordinance and those that authorize the police "to order groups of individuals who threaten the public peace to disperse." See post, at 107.

267

[34] Not all of the respondents in this case, for example, are gang members. The city admits that it was unable to prove that Morales is a gang member but justifies his arrest and conviction by the fact that Morales admitted "that he knew he was with criminal street gang members." Reply Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents in this case were charged in a document that only accused them of being in the presence of a gang member. Tr. of Oral Arg. 34, 58.

268

[35] This conclusion makes it unnecessary to reach the question whether the Illinois Supreme Court correctly decided that the ordinance is invalid as a deprivation of substantive due process. For this reason, Justice Thomas, see post, at 102-106, and Justice Scalia, see post, at 85-86, are mistaken when they assert that our decision must be analyzed under the framework for substantive due process set out in Washington v. Glucksberg, 521 U. S. 702 (1997).

269

[1] In other words, a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as-applied challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law"); Parker v. Levy, 417 U. S. 733, 756 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness").

270

The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court "entertained" a facial challenge even though "the defendants . . . did not claim that the statute was unconstitutional as applied to them." Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that "no set of circumstances exists under which the Act would be valid," 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies ("Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case," id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge—i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them.

271

[2] Salerno, a criminal case, repudiated the Court's statement in Kolender v. Lawson, 461 U. S. 352, 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed "even when [the statute] could conceivably have had some valid application." Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court's articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).

272

[3] The plurality asserts that the Salerno standard for facial challenge "has never been the decisive factor in any decision of this Court." Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application—and hard to resist mentioning more than one.

273

The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court's opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the "standing" question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says "all" (in addition to his own rights), the plurality says "many." That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable.

274

[4] See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth of Mass., 84 F. 3d 18, 20 (CA1 1996); Deshawn E. v. Safir, 156 F. 3d 340, 347 (CA2 1998); Artway v. Attorney Gen. of State of N. J., 81 F. 3d 1235, 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F. 3d 254, 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F. 3d 1096, 1104 (CA5), cert. denied, 522 U. S. 943 (1997); Aronson v. Akron, 116 F. 3d 804, 809 (CA6 1997); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267, 1283 (CA7 1992), cert.denied, 506 U. S. 1053 (1993);Woodis v. Westark Community College, 160 F. 3d 435, 438-439 (CA8 1998); Roulette v.Seattle, 97 F. 3d 300, 306 (CA9 1996); Public Lands Council v. Babbitt, 167 F. 3d 1287, 1293 (CA10 1999); Dimmitt v. Clearwater, 985 F. 2d 1565, 1570— 1571 (CA11 1993); Time Warner Entertainment Co. v. FCC, 93 F. 3d 957, 972 (CADC 1996).

275

[5] With apologies for taking creative license with the work of Messrs. Bernstein, Sondheim, and Laurents. West Side Story, copyright 1959.

276

[6] The plurality's explanation for ignoring these laws is that many of them carried severe penalties and, during the Reconstruction era, they had "harsh consequences on African-American women and children." Ante, at 54, n. 20. Those severe penalties and those harsh consequences are certainly regrettable, but they in no way lessen (indeed, the harshness of penalty tends to increase) the capacity of these laws to prove that loitering was never regarded as a fundamental liberty.

277

[7] Ante, at 53, n. 19. The plurality bases its assertion of apparent concession upon a footnote in Part I of petitioner's brief which reads: "Of course, laws regulating social gatherings affect a liberty interest, and thus are subject to review under the rubric of substantive due process . . . . We address that doctrine in Part II below." Brief for Petitioner 21-22, n. 13. If a careless reader were inclined to confuse the term "social gatherings" in this passage with "loitering," his confusion would be eliminated by pursuing the reference to Part II of the brief, which says, in its introductory paragraph: "[A]s we explain below, substantive due process does not support the court's novel holding that the Constitution secures the right to stand still on the public way even when one is not engaged in speech, assembly, or other conduct that enjoys affirmative constitutional protection." Id., at 39.

278

[8] The plurality says, ante, at 64, n. 35, that since it decides the case on the basis of procedural due process rather than substantive due process, I am mistaken in analyzing its opinion "under the framework for substantive due process set out in Washington v. Glucksberg. " Ibid. But I am not analyzing it under that framework. I am simply assuming that when the plurality says (as an essential part of its reasoning) that "the right to loiter for innocent purposes is . . . a part of the liberty protected by the Due Process Clause" it does not believe that the same word ("liberty") means one thing for purposes of substantive due process and something else for purposes of procedural due process. There is no authority for that startling proposition. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 572-575 (1972) (rejecting procedural-due-process claim for lack of "liberty" interest, and citing substantive-due-process cases).

279

The plurality's opinion seeks to have it both ways, invoking the Fourteenth Amendment's august protection of "liberty" in defining the standard of certainty that it sets, but then, in identifying the conduct protected by that high standard, ignoring our extensive case law defining "liberty," and substituting, instead, all "harmless and innocent" conduct, ante, at 58.

280

[9] I call it a "suggestion" because the plurality says only that the terms of the dispersal order "compound the inadequacy of the notice," and acknowledges that they "might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear." Ante, at 59, 59-60. This notion that a prescription ("Disperse!") which is itself not unconstitutionally vague can somehow contribute to the unconstitutional vagueness of the entire scheme is full of mystery—suspending, as it does, the metaphysical principle that nothing can confer what it does not possess (nemo dat qui non habet) .

281

[10] "Administrative interpretation and implementation of a regulation are . .. highly relevant to our [vagueness] analysis, for `[i]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.' " Ward v.Rock Against Racism, 491 U. S.781, 795-796 (1989) (emphasis added) (quoting Hoffman Estates, 455 U. S., at 494, n. 5). See also id., at 504 (administrative regulations "will often suffice to clarify a standard with an otherwise uncertain scope").

282

[11] Justice Breyer asserts that "one always has some apparent purpose," so that the policeman must "interpret the words `no apparent purpose' as meaning `no apparent purpose except for . . . .' " Ante, at 70. It is simply not true that "one always has some apparent purpose"—and especially not true that one always has some apparent purpose in remaining at rest, for the simple reason that one often (indeed, perhaps usually) has no actual purpose in remaining at rest. Remaining at rest will be a person's normal state, unless he has a purpose which causes him to move. That is why one frequently reads of a person's "wandering aimlessly" (which is worthy of note) but not of a person's "sitting aimlessly" (which is not remarkable at all). And that is why a synonym for "purpose" is "motive": that which causes one to move.

283

[12] The Court speculates that a police officer may exercise his discretion to enforce the ordinance and direct dispersal when (in the Court's view) the ordinance is inapplicable—viz., where there is an apparent purpose, but it is an unlawful one. See ante, at 62. No one in his right mind would read the phrase "without any apparent purpose" to mean anything other than "without any apparent lawful purpose." The implication that acts referred to approvingly in statutory language are "lawful" acts is routine. The Court asserts that the Illinois Supreme Court has forced it into this interpretive inanity because, since it "has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says . . . ." Ante, at 63. But the Illinois Supreme Court did not mention this particular interpretive issue, which has nothing to do with giving the ordinance a "limiting" interpretation, and everything to do with giving it its ordinary legal meaning.

284

[13] The opinion that Justice Breyer relies on, Coates v. Cincinnati, 402 U. S. 611 (1971), discussed ante, at 72-73, did not say that the ordinance there at issue gave adequate notice but did not provide adequate standards for the police. It invalidated that ordinance on both inadequatenotice and inadequate-enforcement-standard grounds, because First Amendment rights were implicated. It is common ground, however, that the present case does not implicate the First Amendment, see ante, at 52-53 (plurality opinion); ante, at 72 (Breyer, J., concurring in part and concurring in judgment).

285

[1] In 1996 alone, gangs were involved in 225 homicides, which was 28 percent of the total homicides committed in the city. Chicago Police Department, Gang and Narcotic Related Violent Crime, City of Chicago: 1993-1997 (June 1998). Nationwide, law enforcement officials estimate that as many as 31,000 street gangs, with 846,000 members, exist. U. S. Dept. of Justice, Office of Justice Programs, Highlights of the 1996 National Youth Gang Survey (OJJDP Fact Sheet, No. 86, Nov. 1998).

286

[2] See,e. g., Act for the Restraint of idle and disorderly Persons (1784) (reprintedin 2 First Laws of the State of North Carolina 508-509 (J. Cushing comp. 1984)); Act for restraining, correcting, suppressing and punishing Rogues, Vagabonds, common Beggars, and other lewd, idle, dissolute, profane and disorderly Persons; and for setting them to work (reprintedin First Laws of the State of Connecticut 206-210 (J.Cushing comp. 1982));Act for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle, disorderly and lewd persons (1788) (reprinted in First Laws of the Commonwealth of Massachusetts 347-349 (J.Cushing comp. 1981));Act for better securing the payment of levies and restraint of vagrants, and for making provisions for the poor (1776) (reprinted in First Laws of the State of Virginia 44-45 (J. Cushing comp. 1982)); Act for the better ordering of the Police of the Town of Providence, of the Work-House in said Town (1796) (reprinted in 2 First Laws of the State of Rhode Island 362-367 (J. Cushing comp. 1983)); Act for the Promotion of Industry, and for the Suppression of Vagrants and Other Idle and Disorderly Persons (1787) (reprinted in First Laws of the State of South Carolina, Part 2, 431-433 (J. Cushing comp. 1981)); An act for the punishment of vagabond and other idle and disorderly persons (1764) (reprinted in First Laws of the State of Georgia 431-433 (J. Cushing comp. 1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to prevent the mischiefs arising from the increase of vagabonds, and other idle and disorderly persons, within this province); Laws of the State of Vermont § 10 (1797).

287

[3] See, e. g., Kan. Stat., ch. 161, § 1 (1855); Ky. Rev. Stat., ch. CIV, § 1 (1852); Pa. Laws, ch. 664, § V (1853); N. Y. Rev. Stat., ch. XX, § 1 (1859); Ill. Stat., ch. 30, § CXXXVIII (1857). During the 19th century, this Court acknowledged the States' power to criminalize vagrancy on several occasions. See Mayor of New York v. Miln, 11 Pet. 102, 148 (1837); Passenger Cases, 7 How. 283, 425 (1849) (opinion of Wayne, J.); Prigg v. Pennsylvania, 16 Pet. 539, 625 (1842).

288

[4] See generally C. Tiedeman, Limitations of Police Power in the United States 116-117 (1886) ("The vagrant has been very appropriately described as the chrysalis of every species of criminal. A wanderer through the land, without home ties, idle, and without apparent means of support, what but criminality is to be expected from such a person? If vagrancy could be successfully combated . . . the infractions of the law would be reduced to a surprisingly small number; and it is not to be wondered at that an effort is so generally made to suppress vagrancy"). See also R. I. Gen. Stat., ch. 232, § 24 (1872); Ill. Rev. Stat., ch. 38, § 270 (1874); Conn. Gen. Stat., ch. 3, § 7 (1875); N. H. Gen. Laws, ch. 269, § 17 (1878); Cal. Penal Code § 647 (1885); Ohio Rev. Stat., Tit. 1, ch. 8, §§ 6994, 6995 (1886); Colo. Rev. Stat., ch. 36, § 1362 (1891); Del. Rev. Stat., ch. 92, Vol. 12, p. 962 (1861); Ky. Stat., ch. 132, § 4758 (1894); Ill. Rev. Stat., ch. 38, § 270 (1895); Ala. Code, ch. 199, § 5628 (1897); Ariz. Rev. Stat., Tit. 17, § 599 (1901); N. Y. Crim. Code § 887 (1902); Pa. Stat. §§ 21409, 21410 (1920); Ky. Stat. § 4758-1 (1922); Ala. Code, ch. 244, § 5571 (1923); Kan. Rev. Stat. § 21-2402 (1923); Ill. Stat. Ann., § 606 (1924); Ariz. Rev. Stat., ch. 111, § 4868 (1928); Cal. Penal Code, Pt. 1, Tit. 15, ch. 2, § 647 (1929); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1945); Kan. Gen. Stat. Ann. § 21-2409 (1949); N. Y. Crim. Code § 887 (1952); Colo. Rev. Stat. Ann. § 40-8-20 (1954); Cal. Penal Code § 647 (1953); 1 Ill. Rev. Stat., ch. 38, § 578 (1953); Ky. Rev. Stat. § 436.520 (1953); 5 Ala. Code, Tit. 14, § 437 (1959); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1963); Kan. Stat. Ann. § 21-2409 (1964).

289

[5] The other cases upon which the plurality relies concern the entirely distinct right to interstate and international travel. See Williams v. Fears, 179 U. S. 270, 274-275 (1900); Kent v. Dulles, 357 U. S. 116 (1958). The plurality claims that dicta in those cases articulating a right of free movement, see Williams, supra, at 274; Kent, supra, at 125, also supports an individual's right to "remain in a public place of his choice." Ironically, Williams rejected the argument that a tax on persons engaged in the business of importing out-of-state labor impeded the freedom of transit, so the precise holding in that case does not support, but undermines, the plurality's view. Similarly, the precise holding in Kent did not bear on a constitutional right to travel; instead, the Court held only that Congress had not authorized the Secretary of State to deny certain passports. Furthermore, the plurality's approach distorts the principle articulated in those cases, stretching it to a level of generality that permits the Court to disregard the relevant historical evidence that should guide the analysis. Michael H. v. Gerald D., 491 U. S. 110, 127, n. 6 (1989) (plurality opinion).

290

[6] See, e. g., Ark. Code Ann. § 12-8-106(b) (Supp. 1997) ("The Department of Arkansas State Police shall be conservators of the peace"); Del. Code Ann., Tit. IX, § 1902 (1989) ("All police appointed under this section shall see that the peace and good order of the State . . . be duly kept"); Ill. Comp. Stat., ch. 65, § 5/11-1-2(a) (1998) ("Police officers in municipalities shall be conservators of the peace"); La. Rev. Stat. Ann. § 40:1379 (West 1992) ("Police employees . . .shall . . . keep the peace and good order"); Mo. Rev. Stat. § 85.561 (1998) ("[M]embers of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city"); N. H. Rev. Stat. Ann. § 105:3 (1990) ("All police officers are, by virtue of their appointment, constables and conservators of the peace"); Ore. Rev. Stat. § 181.110 (1997) ("Police to preserve the peace, to enforce the law and to prevent and detect crime"); 351 Pa. Code, Tit. 351, § 5.5-200 (1998) ("The Police Department . . . shall preserve the public peace, prevent and detect crime, police the streets and highways and enforce traffic statutes, ordinances and regulations relating thereto"); Tex. Code Crim. Proc. Ann., Art. 2.13 (Vernon 1977) ("It is the duty of every peace officer to preserve the peace within his jurisdiction"); Vt. Stat. Ann., Tit. 24, § 299 (1992) ("A sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder"); Va. Code Ann. § 15.2-1704(A) (Supp. 1998) ("The police force . . . is responsible for the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances").

291

[7] For example, the following statutes provide a criminal penalty for the failure to obey a dispersal order: Ala. Code § 13A-11-6 (1994); Ariz. Rev. Stat. Ann. § 13-2902(A)(2) (1989); Ark. Code Ann. § 5-71-207(a)(6) (1993); Cal. Penal Code Ann. § 727 (West 1985); Colo. Rev. Stat. § 18-9-107(b) (1997); Del. Code Ann., Tit. 11, § 1321 (1995); Ga. Code Ann. § 16-11-36 (1996); Guam Code Ann., Tit. 9, § 61.10(b) (1996); Haw. Rev. Stat. § 7111102 (1993); Idaho Code § 18-6410 (1997); Ill. Comp. Stat., ch. 720, § 5/251(e) (1998); Ky. Rev. Stat. Ann. §§ 525.060, 525.160 (Baldwin 1990); Me. Rev. Stat. Ann., Tit. 17A, § 502 (1983); Mass. Gen. Laws, ch. 269, § 2 (1992); Mich. Comp. Laws § 750.523 (1991); Minn. Stat. § 609.715 (1998); Miss. Code Ann. § 97-35-7(1) (1994); Mo. Rev. Stat. § 574.060 (1994); Mont. Code Ann. § 45-8-102 (1997); Nev. Rev. Stat. § 203.020 (1995); N. H. Rev. Stat. Ann. §§ 644:1, 644:2(II)(e) (1996); N. J. Stat. Ann. § 2C:33-1(b) (West 1995); N. Y. Penal Law § 240.20(6) (McKinney 1989); N. C. Gen. Stat. § 14-288.5(a) (1999); N. D. Cent. Code § 12.1-25-04 (1997); Ohio Rev. Code Ann. § 2917.13(A)(2) (1997); Okla. Stat., Tit. 21, § 1316 (1991); Ore. Rev. Stat. § 166.025(1)(e) (1997); 18 Pa. Cons. Stat. § 5502 (1983); R. I. Gen. Laws § 11-38-2 (1994); S. C. Code Ann. § 16-7-10(a) (1985); S. D. Codified Laws § 22-10-11 (1998); Tenn. Code Ann. § 39-17-305(2) (1997); Tex. Penal Code Ann. § 42.03(a)(2) (1994); Utah Code Ann. § 76-9-104 (1995); Vt. Stat. Ann., Tit. 13, § 901 (1998); Va. Code Ann. § 18.2-407 (1996); V. I. Code Ann., Tit. 5, § 4022 (1997); Wash. Rev. Code § 9A.84.020 (1994); W. Va. Code § 61-6-1 (1997); Wis. Stat. § 947.06(3) (1994).

292

[8] See also Ind. Code § 36-8-3-10(a) (1993) ("The police department shall, within the city: (1) preserve peace; (2) prevent offenses; (3) detect and arrest criminals; (4) suppress riots, mobs, and insurrections; (5) disperse unlawful and dangerous assemblages and assemblages that obstruct the free passage of public streets, sidewalks, parks, and places . . ."); Okla. Stat., Tit. 19, § 516 (1991) ("It shall be the duty of the sheriff . . . to keep and preserve the peace of their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections . . .").

293

[9] The plurality suggests, ante, at 59, that dispersal orders are, by their nature, vague. The plurality purports to distinguish its sweeping condemnation of dispersal orders from Colten v.Kentucky, 407 U. S. 104 (1972), but I see no principled ground for doing so. The logical implication of the plurality's assertion is that the police can never issue dispersal orders. For example, in the plurality's view, itis apparently unconstitutional for a police officer to ask a group of gawkers to move along in order to secure a crime scene.

294

[10] For example, a 1764 Georgia law declared that "all able bodied persons . . . who shall be found loitering . . . , all other idle vagrants, or disorderly persons wandering abroad without betaking themselves to some lawful employment or honest labor, shall be deemed and adjudged vagabonds," and required the apprehension of "any such vagabond . . . found within any county in this State, wandering, strolling, loitering about" (reprinted in First Laws of the State of Georgia, Part 1, 376-377 (J. Cushing comp. 1981)). See also, e. g., Digest of Laws of Pennsylvania 829 (F. Brightly 8th ed. 1853) ("The following described persons shall be liable to the penalties imposed by law upon vagrants . . . . All persons who shall . . . be found loitering"); Ky. Rev. Stat., ch. CIV, § 1, p. 69 (1852) ("If any able bodied person be found loitering or rambling about, . . . he shall be taken and adjudged to be a vagrant, and guilty of a high misdemeanor").

295

[11] The Court asserts that we cannot second-guess the Illinois Supreme Court's conclusion that the definition "`provides absolute discretion to police officers to decide what activities constitute loitering,' "ante, at 61 (quoting 177 Ill.2d, at 457, 687 N. E. 2d, at 63). While we are bound by a state court's construction of a statute, the Illinois court "did not, strictly speaking, construe the [ordinance] in the sense of defining the meaning of a particular statutory word or phase. Rather, it merely characterized [its] `practical effect' . . . .This assessment does not bind us." Wisconsin v. Mitchell, 508 U. S. 476, 484 (1993).

539 U.S. 558 (2003)

LAWRENCE et al.
v.
TEXAS

No. 02-102.

Supreme Court of United States.

Argued March 26, 2003. Decided June 26, 2003.

 

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

 

[559] [560] [561] KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.

Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.

Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.^[*]

[562] JUSTICE KENNEDY delivered the opinion of the Court.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

 

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, [563] resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:

 

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.

The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.

[564] We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:

 

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

 

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers.

There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).

In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and [565] placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.

After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:

"It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.

 

The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.

[566] In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J.,joined by Brennan and Marshall, JJ.).

The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so [567] for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions [568] in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of [569] homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic [570] punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.

It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, [571] 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).

In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).

Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of [572] most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).

This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16.

In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws [573] punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed [574] that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.

 

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude [575] the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540-15:549 [576] (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary [577] Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision' " (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional [578] attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).

 

JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume [579] to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE O'CONNOR, concurring in the judgment.

The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).

Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the [580] democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"—specifically, homosexuals. 517 U. S., at 632.

[581] The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.

The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e. g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e. g., Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576.

And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas [582] itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992).

Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished.

This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

[583] Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634.

Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575.

Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" [584] "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause "`neither knows nor tolerates classes among citizens.'" Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting)).

A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).

Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a [585] law would not long stand in our democratic society. In the words of Justice Jackson:

"The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).

 

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.

[586] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.

"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

Most of the rest of today's opinion has no relevance to its actual holding—that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 578 (overruling Bowers to the extent it sustained Georgia's antisodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante, at 565, and "fundamental decisions," ibid., nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 564.

 

I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. [587] I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention— the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.

 

Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 576-577. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven `unworkable,'" Casey, supra, at 855.

Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "ero[ded]" by subsequent decisions, ante, at 576; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 577. The problem is that Roe itself—which today's majority surely has no disposition to overrule—satisfies these conditions to at least the same degree as Bowers.

[588] (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 571. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 574 ("`At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.

I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are "`deeply rooted in this Nation's history and tradition' " qualify for anything other than rational-basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition.

(2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 576. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left [589] unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution —A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).^[1] Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").

(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding...." Ante, at 577. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined [590] to preventing demonstrable harms"); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid. (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.^[2]

[591] What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of, and restrictions upon, abortion were determined legislatively State by State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted [592] the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.

To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.

 

Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.

Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 567 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 574 ("`These matters . . . are central to the liberty protected by the Fourteenth Amendment' "); ante, at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:

"No state shall . . . deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).

 

[593] Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection—that is, rights which are "`deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a `liberty' be `fundamental' . . . but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).^[3] All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.

[594] Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not "`deeply rooted in this Nation's history and tradition,'" id., at 192.

The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "`deeply rooted in this Nation's history and tradition,'" the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 578.

I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"—even though, as I have said, the Court does not have the boldness to reverse that conclusion.

 

The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due [595] process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well-known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold —a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right.

Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was "`deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that antiabortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)—and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest").

After discussing the history of antisodomy laws, ante, at 568-571, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, [596] at 568. This observation in no way casts into doubt the "definitive [historical] conclusio[n]," ibid., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general—regardless of whether it was performed by same-sex or opposite-sex couples:

"It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).

 

It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 568. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.

[597] Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 569. The key qualifier here is "acting in private"—since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequen[t]," ibid.). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable.

Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 571-572 (emphasis [598] added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize "`consensual sexual relations conducted in private,'" ante, at 572, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159.

In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 576, but rather rejected the claimed right to sodomy on the ground that such a right was not "`deeply rooted in this Nation's history and tradition,'" 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).

[599]

 

 

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 578 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "`the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,'" ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

 

Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 579 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual [600] acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers —society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.

JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. [601] It is instead directed toward gay persons as a class." Ante, at 583.

 

Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

JUSTICE O'CONNOR simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 580. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically unpopular group," ante, at 580, are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 585. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR [602] has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).

 

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that [603] culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made [604] by the people, and not imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 578; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen [605] sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 567; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.

JUSTICE THOMAS, dissenting.

I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the [606] Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.

[*] Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. McMaster of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.

Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.

[1] This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.

[2] While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. § 654(b)(1) ("A member of the armed forces shall be separated from the armed forces . . . if . . . the member has engaged in . . . a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting—on the basis of the rational-basis standard—an equalprotection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances).

[3] The Court is quite right that "`[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,'" ante, at 572. An asserted "fundamental liberty interest" must not only be "`deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "`implicit in the concept of ordered liberty,'" so that "`neither liberty nor justice would exist if [it] were sacrificed,'" ibid.Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.

17 So.2d 427

4 DIV. 805.

Court of Appeals of Alabama.

Jan. 18, 1944.

Rehearing Granted March 21, 1944.

12 N.Y.2d 133 (1956) 2

The People of the State of New York, Appellant-Respondent,
v.
Emil Decina, Respondent-Appellant.

3

Court of Appeals of the State of New York.

4Argued October 4, 1956. 5Decided November 29, 1956. 6

 

7

John F. Dwyer, District Attorney (Leonard Finkelstein of counsel), for appellant-respondent.

8

Charles J. McDonough for respondent-appellant.

9

CONWAY, Ch. J., DYE and BURKE, JJ., concur with FROESSEL, J., DESMOND J., concurs in part and dissents in part in an opinion in which FULD and VAN VOORHIS, JJ., concur.

10

[135] FROESSEL, J.

11

At about 3:30 P.M. on March 14, 1955, a bright, sunny day, defendant was driving, alone in his car, in a northerly direction on Delaware Avenue in the city of Buffalo. The portion of Delaware Avenue here involved is 60 feet wide. At a point south of an overhead viaduct of the Erie Railroad, defendant's car swerved to the left, across the center line in the street, so that it was completely in the south lane, traveling 35 to 40 miles per hour.

12

It then veered sharply to the right, crossing Delaware Avenue and mounting the easterly curb at a point beneath the viaduct and continued thereafter at a speed estimated to have been about 50 or 60 miles per hour or more. During this latter swerve, a pedestrian testified that he saw defendant's hand above his head; another witness said he saw defendant's left arm bent over the wheel, and his right hand extended towards the right door.

13

A group of six schoolgirls were walking north on the easterly sidewalk of Delaware Avenue, two in front and four slightly in the rear, when defendant's car struck them from behind. One of the girls escaped injury by jumping against the wall of the viaduct. The bodies of the children struck were propelled northward onto the street and the lawn in front of a coal company, located to the north of the Erie viaduct on Delaware Avenue. Three of the children, 6 to 12 years old, were found dead on arrival by the medical examiner, and a fourth child, 7 years old, died in a hospital two days later as a result of injuries sustained in the accident.

14

After striking the children, defendant's car continued on the easterly sidewalk, and then swerved back onto Delaware Avenue once more. It continued in a northerly direction, passing under a second viaduct before it again veered to the right and remounted the easterly curb, striking and breaking a metal lamppost. With its horn blowing steadily — apparently because defendant was "stooped over" the steering wheel — the car proceeded on the sidewalk until it finally crashed through a 7¼-inch brick wall of a grocery store, injuring at least one customer and causing considerable property damage.

15

[136] When the car came to a halt in the store, with its horn still blowing, several fires had been ignited. Defendant was stooped over in the car and was "bobbing a little". To one witness he appeared dazed, to another unconscious, lying back with his hands off the wheel. Various people present shouted to defendant to turn off the ignition of his car, and "within a matter of seconds the horn stopped blowing and the car did shut off".

16

Defendant was pulled out of the car by a number of bystanders and laid down on the sidewalk. To a policeman who came on the scene shortly he appeared "injured, dazed"; another witness said that "he looked as though he was knocked out, and his arm seemed to be bleeding". An injured customer in the store, after receiving first aid, pressed defendant for an explanation of the accident and he told her: "I blacked out from the bridge".

17

When the police arrived, defendant attempted to rise, staggered and appeared dazed and unsteady. When informed that he was under arrest, and would have to accompany the police to the station house, he resisted and, when he tried to get away, was handcuffed. The foregoing evidence was adduced by the People, and is virtually undisputed — defendant did not take the stand nor did he produce any witnesses.

18

From the police station defendant was taken to the E. J. Meyer Memorial Hospital, a county institution, arriving at 5:30 P.M. The two policemen who brought defendant to the hospital instructed a police guard stationed there to guard defendant, and to allow no one to enter his room. A pink slip was brought to the hospital along with defendant, which read: "Buffalo Police Department, Inter-Departmental Correspondence. To Superintendent of Meyer Memorial Hospital, from Raymond J. Smith, Captain, Precinct 17. Subject, Re: One Emil A. Decina, 87 Sidney, CD-553284, date 3-14-55. Sir: We are forwarding one Emil A. Decina, age 33, of 87 Sidney Street, to your hospital for examination on the recommendation of District Attorney John Dwyer and Commissioner Joseph A. De Cillis. Mr. Decina was involved in a fatal accident at 2635 Delaware Avenue at 3:40 P.M. this date. There were three fatalities, and possibly four. A charge will be placed against Mr. Decina after the investigation has been completed."

19

On the evening of that day, after an interne had visited and treated defendant and given orders for therapy, Dr. Wechter, a [137] resident physician in the hospital and a member of its staff, came to his room. The guard remained, according to his own testimony, in the doorway of the room — according to Dr. Wechter, outside, 6 or 7 feet away. He observed both Dr. Wechter and defendant "on the bed", and he stated that he heard the entire conversation between them, although he did not testify as to its content.

20

Before Dr. Wechter saw defendant, shortly after the latter's admission on the floor, he had read the hospital admission record, and had either seen or had communicated to him the contents of the "pink slip". While he talked with defendant, another physician came in and left. After giving some additional brief testimony, but before he was permitted to relate a conversation he had with defendant which was contained in the hospital notes, defense counsel was permitted with some restriction to cross-examine the doctor. In the course of that cross-examination, the doctor testified as follows:

21

That he saw defendant in his professional capacity as a doctor but that he did not see him for purposes of treatment. However, it was shown that at a former trial at which the jury had disagreed, he stated that the information he obtained was pursuant to his duties as a physician; that the purpose of his examination was to diagnose defendant's condition; that he questioned the defendant for the purpose of treatment, among other things; that in the hospital they treat any patient that comes in.

22

He further testified at this trial that ordinarily the resident on the floor is in charge of the floor, and defendant was treated by more than one doctor; that he took the medical history. At the previous trial, when he was asked whether he represented the police and the district attorney, he replied: "I don't know. I just seen him as a patient coming into the hospital". He now stated that he saw defendant as part of his routine duties at the hospital; that he would say that defendant "was a patient"; that he was not retained as an expert by the district attorney or the Police Department, and was paid nothing to examine defendant; that his examination was solely in the course of his duties as a resident physician on the staff of the hospital, and that, whether or not he had a slip from the police, so long as that man was on his floor as a patient, he would have examined him.

23

He also stated he never told defendant that he had any pink [138] slip, or that he was examining him for the district attorney or the Police Department, or that defendant was under no duty to talk, or that anything he said might be used against him at a later trial. He further testified that he was a doctor at the hospital at which defendant was a patient; that he personally wrote items in the hospital record, after his conversations with defendant; that he saw defendant three times; that he was asked by the district attorney to submit a voucher for consideration by the comptroller's office, but that was not done until after the first trial. He also stated at this trial that the discharge summary was made out by him, and that of the four sheets of progress notes, at least the first two sheets were in his handwriting.

24

The direct examination was then continued, the doctor being permitted to state the conversation with defendant over objection and exception. He asked defendant how he felt and what had happened. Defendant, who still felt a little dizzy or blurry, said that as he was driving he noticed a jerking of his right hand, which warned him that he might develop a convulsion, and that as he tried to steer the car over to the curb he felt himself becoming unconscious, and he thought he had a convulsion. He was aware that children were in front of his car, but did not know whether he had struck them.

25

Defendant then proceeded to relate to Dr. Wechter his past medical history, namely, that at the age of 7 he was struck by an auto and suffered a marked loss of hearing. In 1946 he was treated in this same hospital for an illness during which he had some convulsions. Several burr holes were made in his skull and a brain abscess was drained. Following this operation defendant had no convulsions from 1946 through 1950. In 1950 he had four convulsions, caused by scar tissue on the brain. From 1950 to 1954 he experienced about 10 or 20 seizures a year, in which his right hand would jump although he remained fully conscious. In 1954, he had 4 or 5 generalized seizures with loss of consciousness, the last being in September, 1954, a few months before the accident. Thereafter he had more hospitalization, a spinal tap, consultation with a neurologist, and took medication daily to help prevent seizures.

26

On the basis of this medical history, Dr. Wechter made a diagnosis of Jacksonian epilepsy, and was of the opinion that defendant had a seizure at the time of the accident. Other members of the hospital staff performed blood tests and took [139] an electroencephalogram during defendant's three-day stay there. The testimony of Dr. Wechter is the only testimony before the trial court showing that defendant had epilepsy, suffered an attack at the time of the accident, and had knowledge of his susceptibility to such attacks.

27

Defendant was indicted and charged with violating section 1053-a of the Penal Law. Following his conviction, after a demurrer to the indictment was overruled, the Appellate Division, while holding that the demurrer was properly overruled, reversed on the law, the facts having been "examined" and found "sufficient". It granted a new trial upon the ground that the "transactions between the defendant and Dr. Wechter were between physician and patient for the purpose of treatment and that treatment was accomplished", and that evidence thereof should not have been admitted. From its determination both parties have appealed.

28

We turn first to the subject of defendant's cross appeal, namely, that his demurrer should have been sustained, since the indictment here does not charge a crime. The indictment states essentially that defendant, knowing "that he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time", was culpably negligent "in that he consciously undertook to and did operate his Buick sedan on a public highway" (emphasis supplied) and "while so doing" suffered such an attack which caused said automobile "to travel at a fast and reckless rate of speed, jumping the curb and driving over the sidewalk" causing the death of 4 persons. In our opinion, this clearly states a violation of section 1053-a of the Penal Law. The statute does not require that a defendant must deliberately intend to kill a human being, for that would be murder. Nor does the statute require that he knowingly and consciously follow the precise path that leads to death and destruction. It is sufficient, we have said, when his conduct manifests a "disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment." (People v. Angelo, 246 N.Y. 451, 457.)

29

Assuming the truth of the indictment, as we must on a demurrer, this defendant knew he was subject to epileptic [140] attacks and seizures that might strike at any time. He also knew that a moving motor vehicle uncontrolled on a public highway is a highly dangerous instrumentality capable of unrestrained destruction. With this knowledge, and without anyone accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue. How can we say as a matter of law that this did not amount to culpable negligence within the meaning of section 1053-a?

30

To hold otherwise would be to say that a man may freely indulge himself in liquor in the same hope that it will not affect his driving, and if it later develops that ensuing intoxication causes dangerous and reckless driving resulting in death, his unconsciousness or involuntariness at that time would relieve him from prosecution under the statute. His awareness of a condition which he knows may produce such consequences as here, and his disregard of the consequences, renders him liable for culpable negligence, as the courts below have properly held (People v. Eckert, 2 N Y 2d 126, decided herewith; People v. Kreis, 302 N.Y. 894; Matter of Enos v. Macduff, 282 App. Div. 116; State v. Gooze, 14 N. J. Super. 277). To have a sudden sleeping spell, an unexpected heart or other disabling attack, without any prior knowledge or warning thereof, is an altogether different situation (see Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N.Y. 639), and there is simply no basis for comparing such cases with the flagrant disregard manifested here.

31

It is suggested in the dissenting opinion that a new approach to licensing would prevent such disastrous consequences upon our public highways. But would it — and how and when? The mere possession of a driver's license is no defense to a prosecution under section 1053-a; nor does it assure continued ability to drive during the period of the license. It may be noted in passing, and not without some significance, that defendant strenuously and successfully objected to the district attorney's offer of his applications for such license in evidence, upon the ground that whether or not he was licensed has nothing to do with the case. Under the view taken by the dissenters, this defendant would be immune from prosecution under this statute even if he were unlicensed. Section 1053-a places a personal [141] responsibility on each driver of a vehicle — whether licensed or not — and not upon a licensing agency.

32

Accordingly, the Appellate Division properly sustained the lower court's order overruling the demurrer, as well as its denial of the motion in arrest of judgment on the same ground.

33

The appeal by the People (hereinafter called appellant) challenges the determination of the Appellate Division that the testimony of Dr. Wechter was improperly admitted in contravention of section 352 of the Civil Practice Act, which states that a physician "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity".

34

Two questions are raised by this appeal. The first is whether a physician-patient relationship existed between Dr. Wechter and defendant, and, if so, whether the communications made by defendant to him were necessary for the doctor to act in his professional capacity. The second is whether the presence of the police guard in the doorway of the room destroys any privilege arising under section 352 and permits the doctor to testify. It is not contested that defendant, as the party asserting the privilege, bears the burden of showing its application in the present case (Bloodgood v. Lynch, 293 N.Y. 308, 314; People v. Austin, 199 N.Y. 446, 452; People v. Koerner, 154 N.Y. 355, 366; People v. Schuyler, 106 N.Y. 298, 304). He claims to have sustained the burden on the basis of appellant's own evidence previously outlined.

35

Appellant contends that no professional relationship arose because the doctor was sent by the district attorney to examine, not treat, the defendant, and in fact he did not treat him. The cases upon which appellant relies are readily distinguishable from the one now before us. In People v. Schuyler (supra), for example, a jail physician was allowed to testify, over an objection based on the predecessor statute to section 352 of the Civil Practice Act, to his observations of the prisoner's mental condition. There was no evidence that the prisoner was ill, or that he was attended by, treated, or required any treatment by said jail physician while in custody.

36

The criterion to be applied in determining whether or not a professional relationship exists was stated in People v. Austin (199 N.Y. 446, supra). The testimony of a physician describing [142] an examination of defendant in jail relating to his sanity was found admissible because there were no circumstances from which it might be inferred that the defendant "was led to accept him [the examining doctor] as a physician and consequently to disclose to him information that perhaps would not otherwise have been given" (p. 452). This rule the court derived from People v. Stout (3 Parker Cr. Rep. 670, 676).

37

In People v. Koerner (154 N.Y. 355, 365-366, supra), as in People v. Furlong (187 N.Y. 198, 208-209), testimony of physicians was admitted, but in each case the defendant was explicitly informed that the physician was not acting in his capacity as a doctor or that information obtained might be used against him in subsequent legal proceedings (see, also, People v. Leyra, 302 N.Y. 353, 363, which had an altogether different fact pattern, however).

38

People v. Sliney (137 N.Y. 570, 580) and People v. Hoch (150 N.Y. 291, 302-303) are consistent with the rule of the Austin and Stout cases (supra). They are additional instances where the testimony of physicians who held examinations in jails was admitted, since no evidence was adduced from which it might be found that the defendants could reasonably have regarded the physician as acting in a professional capacity towards them.

39

Appellant further contends that there can be no finding of physician-patient relation in this case because there is no evidence that Dr. Wechter actually treated defendant. The cases relied on by appellant are inapposite. They properly hold that where a physician does treat a person, regardless of whether it is at his request, or with his consent, the relation arises, but they do not hold the converse (Meyer v. Knights of Pythias, 178 N.Y. 63, affd. 198 U. S. 508; People v. Murphy, 101 N.Y. 126). In determining whether or not information necessary for treatment is privileged, the question as to whether or not actual treatment is undertaken is not decisive (Grattan v. Metropolitan Life Ins. Co., 24 Hun 43, 46).

40

In any event, although Dr. Wechter testified that he personally did not treat defendant, he admitted that other doctors and internes in the hospital did "treat" him for Jacksonian epilepsy. He himself made that diagnosis. To say that in a hospital, where there is division of duties among the staff, the relation of physician and patient does not arise with regard to those members of the staff who do not actually treat the patient [143] is unsound. It would place upon section 352 strictures that are opposed to our oft-expressed view that the statute is to be liberally construed (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N.Y. 450, 455; Matter of City Council of City of N. Y. v. Goldwater, 284 N.Y. 296, 300; Edington v. Mutual Life Ins. Co., 67 N.Y. 185, 194).

41

It is apparent that the information here given by the defendant was necessary for his treatment. Those cases allowing disclosure by physicians of information related to them by their patients deal with such nonprofessional matters as details of an accident entirely unrelated to treatment (Griffiths v. Metropolitan St. Ry. Co., 171 N.Y. 106; Green v. Metropolitan St. Ry. Co., 171 N.Y. 201; Gray v. City of New York, 137 App. Div. 316, 321; Travis v. Haan, 119 App. Div. 138; Benjamin v. Village of Tupper Lake, 110 App. Div. 426; De Jong v. Erie R. R. Co., 43 App. Div. 427), or facts such as a layman might observe (Klein v. Prudential Ins. Co., 221 N.Y. 449; Sparer v. Travelers Ins. Co., 185 App. Div. 861). Evidence of a prior medical history of a disease for which defendant was treated cannot be said to be information unnecessary for treatment. The communication is therefore within the conditions set forth in section 352.

42

The second question will now be dealt with. The problem here is what effect, if any, the presence of the police guard, pursuant to the orders of the district attorney, in or about the doorway of the hospital room, where he could overhear the conversation between Dr. Wechter and defendant, has upon the privilege under section 352. That section does not in so many words require that a communication be confidential or confidentially given in order to be privileged. So we turn to the cases. In Matter of Coddington (307 N.Y. 181, 187-191) (then) CONWAY, J., pointed out that Judge EARL attempted, in Edington v. Ætna Life Ins. Co. (77 N.Y. 564) to confine the statute to information of a confidential nature, but the court did not agree with him on that point. As a result of the cases that followed — Grattan v. Metropolitan Life Ins. Co. (80 N.Y. 281) and Renihan v. Dennin (103 N.Y. 573) — in the latter of which Judge EARL suggested legislation, section 836 of the Code of Civil Procedure (now Civ. Prac. Act, § 354) was amended to allow physicians in effect to testify as to nonconfidential communications of deceased patients where the privilege has been waived by persons [144] authorized by the section to do so. The language of those cases was exceedingly broad, and it was pointed out that, under the literal phraseology of code section 834, the physician was absolutely prohibited from testifying so long as the conditions of the statute were met.

43

Faced with the problem of the effect on the privilege of the presence of third persons, our Appellate Divisions turned to these decisions and found them authority for holding the testimony of the physicians privileged. In Denaro v. Prudential Ins. Co. (154 App. Div. 840, 843 [2d dept.]), a patient was examined by a doctor "in the presence of [his] * * * father or others near", and it was held that the physician could not testify; the persons present may testify, but the physician is bound by the rule. Hobbs v. Hullman (183 App. Div. 743 [3d dept.]) decided that where a conversation was had between a physician and a patient in the presence of a nurse, who was neither a professional nor a registered nurse, the doctor's testimony was inadmissible. A third case, Sparer v. Travelers Ins. Co. (185 App. Div. 861, 864 [1st dept.], supra), reached the same conclusion; it did not allow the testimony of a physician as to the details of an operation he performed to be received in evidence, although a medical student was present during its performance. And now the fourth department in the case at bar has impliedly held likewise in the case of a police guard. The present case falls clearly within the scope of these decisions. If anything, it presents an even stronger situation, for the guard's presence was ordered by command of the public authorities.

44

An opposite result is not indicated by those cases dealing with the effect of the presence of a third person upon the attorney-client privilege under section 353 of the Civil Practice Act (Baumann v. Steingester, 213 N.Y. 328; People v. Buchanan, 145 N.Y. 1, 26). The Denaro case (154 App. Div. 840, supra) expressly held that the situations were not analogous. It may be noted that the applicable statutes are not identical. Under section 353, relating to attorneys, the privilege extends only to "a communication, made by his client to him". Under section 352 relating to physicians, however, the privilege extends to "any information which he acquired in attending a patient"; since such information may be acquired from third persons — and third persons who have some definite relationship to the [145] patient are often present — the situation is not analogous to an attorney-client relationship.

45

Whether or not this distinction accounts for the fact that in attorney-client cases it has generally been held that the presence of a third person destroys the privilege, the cases suggest that even here there are exceptions (Baumann v. Steingester, supra, p. 332; People v. Buchanan, supra, p. 26). So if the communication was intended to be confidential, the fact that it may have been overheard by a third person does not necessarily destroy the privilege (see People v. Cooper, 307 N.Y. 253, 259, n. 3; Erlich v. Erlich, 278 App. Div. 244, 245; Richardson on Evidence [8th ed.], § 438).

46

The true test appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute. Applying this test, we hold that under section 352, and the cases construing it, the communication by defendant to Dr. Wechter was privileged, and admission of it by the trial court was error, as correctly stated by the Appellate Division.

47

Defendant raises the subsidiary question that the hospital record was improperly received in evidence before the Grand Jury, and the indictment should, therefore, be dismissed. A word may be said about that. He made no motion for inspection of the minutes of the Grand Jury. We do not know what evidence was adduced there, for the Grand Jury minutes are not a part of this record. Even if we assume that the hospital record was improperly before the Grand Jury, we have no way of knowing what other evidence may have been adduced and formed a sufficient basis for the indictment. There is a presumption that an indictment is based on legally sufficient evidence (see People v. Eckert, supra; People v. Sweeney, 213 N.Y. 37, 44; People v. Sexton, 187 N.Y. 495, 512; People v. Glen, 173 N.Y. 395, 403). We cannot here rule on the legal sufficiency of evidence before the Grand Jury without knowing what that evidence is. Defendant should have taken appropriate steps below and made a record so as to be in a position properly to raise the question on appeal.

48

Accordingly, the order of the Appellate Division should be affirmed.

49

[146] DESMOND, J. (concurring in part and dissenting in part).

50

I agree that the judgment of conviction cannot stand but I think the indictment should be dismissed because it alleges no crime. Defendant's demurrer should have been sustained.

51

The indictment charges that defendant knowing that "he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness" suffered "an attack and loss of consciousness which caused the said automobile operated by the said defendant to travel at a fast and reckless rate of speed" and to jump a curb and run onto the sidewalk "thereby striking and causing the death" of 4 children. Horrible as this occurrence was and whatever necessity it may show for new licensing and driving laws, nevertheless this indictment charges no crime known to the New York statutes. Our duty is to dismiss it.

52

Section 1053-a of the Penal Law describes the crime of "criminal negligence in the operation of a vehicle resulting in death". Declared to be guilty of that crime is "A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed". The essentials of the crime are, therefore, first, vehicle operation in a culpably negligent manner, and, second, the resulting death of a person. This indictment asserts that defendant violated section 1053-a, but it then proceeds in the language quoted in the next-above paragraph of this opinion to describe the way in which defendant is supposed to have offended against that statute. That descriptive matter (an inseparable and controlling ingredient of the indictment, Code Crim. Pro., §§ 275, 276; People v. Dumar, 106 N.Y. 502) shows that defendant did not violate section 1053-a. No operation of an automobile in a reckless manner is charged against defendant. The excessive speed of the car and its jumping the curb were "caused", says the indictment itself, by defendant's prior "attack and loss of consciousness". Therefore, what defendant is accused of is not reckless or culpably negligent driving, which necessarily connotes and involves consciousness and volition. The fatal assault by this car was after and because of defendant's failure of consciousness. To say that one drove a car in a reckless manner in that his unconscious condition caused the car to travel recklessly is to make two mutually contradictory assertions. One cannot be "reckless" while unconscious. One cannot while unconscious [147] "operate" a car in a culpably negligent manner or in any other "manner". The statute makes criminal a particular kind of knowing, voluntary, immediate operation. It does not touch at all the involuntary presence of an unconscious person at the wheel of an uncontrolled vehicle. To negative the possibility of applying section 1053-a to these alleged facts we do not even have to resort to the rule that all criminal statutes are closely and strictly construed in favor of the citizen and that no act or omission is criminal unless specifically and in terms so labeled by a clearly worded statute (People v. Benc, 288 N.Y. 318, 323, and cases cited).

53

Tested by its history section 1053-a has the same meaning: penalization of conscious operation of a vehicle in a culpably negligent manner. It is significant that until this case (and the Eckert case, 2 N Y 2d 126, handed down herewith) no attempt was ever made to penalize, either under section 1053-a or as manslaughter, the wrong done by one whose foreseeable blackout while driving had consequences fatal to another person.

54

The purpose of and occasion for the enactment of section 1053-a is well known (see Governor's Bill Jacket on L. 1936, ch. 733). It was passed to give a new label to, and to fix a lesser punishment for, the culpably negligent automobile driving which had formerly been prosecuted under section 1052 of the Penal Law defining manslaughter in the second degree. It had been found difficult to get manslaughter convictions against death-dealing motorists. But neither of the two statutes has ever been thought until now to make it a crime to drive a car when one is subject to attacks or seizures such as are incident to certain forms and levels of epilepsy and other diseases and conditions.

55

Now let us test by its consequences this new construction of section 1053-a. Numerous are the diseases and other conditions of a human being which make it possible or even likely that the afflicted person will lose control of his automobile. Epilepsy, coronary involvements, circulatory diseases, nephritis, uremic poisoning, diabetes, Meniere's syndrome, a tendency to fits of sneezing, locking of the knee, muscular contractions — any of these common conditions may cause loss of control of a vehicle for a period long enough to cause a fatal accident. An automobile traveling at only 30 miles an hour goes 44 feet in a second. Just what is the court holding here? No less than [148] this: that a driver whose brief blackout lets his car run amuck and kill another has killed that other by reckless driving. But any such "recklessness" consists necessarily not of the erratic behavior of the automobile while its driver is unconscious, but of his driving at all when he knew he was subject to such attacks. Thus, it must be that such a blackout-prone driver is guilty of reckless driving (Vehicle and Traffic Law, § 58) whenever and as soon as he steps into the driver's seat of a vehicle. Every time he drives, accident or no accident, he is subject to criminal prosecution for reckless driving or to revocation of his operator's license (Vehicle and Traffic Law, § 71, subd. 3). And how many of this State's 5,000,000 licensed operators are subject to such penalties for merely driving the cars they are licensed to drive? No one knows how many citizens or how many or what kind of physical conditions will be gathered in under this practically limitless coverage of section 1053-a of the Penal Law and section 58 and subdivision 3 of section 71 of the Vehicle and Traffic Law. It is no answer that prosecutors and juries will be reasonable or compassionate. A criminal statute whose reach is so unpredictable violates constitutional rights, as we shall now show.

56

When section 1053-a was new it was assailed as unconstitutional on the ground that the language "operates or drives any vehicle of any kind in a reckless or culpably negligent manner" was too indefinite since a driver could only guess as to what acts or omissions were meant. Constitutionality was upheld in People v. Gardner (255 App. Div. 683). The then Justice LEWIS, later of this court, wrote in People v. Gardner that the statutory language was sufficiently explicit since "reckless driving" and "culpable negligence" had been judicially defined in manslaughter cases as meaning the operation of an automobile in such a way as to show a disregard of the consequences (see People v. Angelo, 246 N.Y. 451). The manner in which a car is driven may be investigated by a jury, grand or trial, to see whether the manner was such as to show a reckless disregard of consequences. But giving section 1053-a the new meaning assigned to it permits punishment of one who did not drive in any forbidden manner but should not have driven at all, according to the present theory. No motorist suffering from any serious malady or infirmity can with [149] impunity drive any automobile at any time or place, since no one can know what physical conditions make it "reckless" or "culpably negligent" to drive an automobile. Such a construction of a criminal statute offends against due process and against justice and fairness. The courts are bound to reject such conclusions when, as here, it is clearly possible to ascribe a different but reasonable meaning (People v. Ryan, 274 N.Y. 149, 152; Matter of Schwarz v. General Aniline & Film Corp., 305 N.Y. 395, 406, and cases cited).

57

A whole new approach may be necessary to the problem of issuing or refusing drivers' licenses to epileptics and persons similarly afflicted (see Barrow and Fabing on Epilepsy and the Law, ch. IV; Restricted Drivers' Licenses to Controlled Epileptics, and see 2 U.C.L.A. L. Rev., p. 500 et seq.). But the absence of adequate licensing controls cannot in law or in justice be supplied by criminal prosecutions of drivers who have violated neither the language nor the intendment of any criminal law.

58

Entirely without pertinence here is any consideration of driving while intoxicated or while sleepy, since those are conditions presently known to the driver, not mere future possibilities or probabilities.

59

The demurrer should be sustained and the indictment dismissed.

60

Order affirmed.

18 Cal.App.3d 359 (1970) 287 Cal. Rptr. 394 3

THE PEOPLE, Plaintiff and Respondent,
v.
HUEY P. NEWTON, Defendant and Appellant.

4Docket No. 7753. 5

Court of Appeals of California, First District, Division Four.

6May 29, 1970. 7

 

8

[365] COUNSEL

9

Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Benjamin Dreyfus and Fay Stender for Defendant and Appellant.

10

[366] Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

11

OPINION

12

RATTIGAN, J.

13

Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter.

14

Count One of an indictment issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder (Pen. Code, § 187) of John Frey; count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know Heanes to be a peace officer engaged in the performance of his duties (Pen. Code, § 245b); count Three, with the kidnaping of Dell Ross. (Pen. Code, § 207.) The indictment also alleged that defendant had previously (in 1964) been convicted of assault with a deadly weapon, a felony. He pleaded not guilty to all three counts and denied the prior.

15

After the People rested during the lengthy jury trial which followed in 1968, and pursuant to Penal Code section 1118.1, the trial court granted defendant's motion for acquittal on count Three (the Ross kidnaping). Similar motions, addressed to the other counts, were denied. The jury acquitted him of the Heanes assault charged in count Two, but found him guilty of the voluntary manslaughter of Frey under count One. The jury also found the charge of the prior felony conviction to be true. Defendant's motions for new trial and for probation were denied, and he was sentenced to state prison for the term prescribed by law. This appeal followed.

16

At relevant times, John Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967. Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned therein, the People showed that the following events first occurred on the date in question:

17

Lord was on radio duty in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity and which bore license number AZM 489. Less than a minute later, Lord told [367] Frey that "we have got some PIN information coming out on that."^[1] Frey replied, "Check. It's a known Black Panther vehicle.... I am going to stop it at Seventh and Willow [Streets]. You might send a unit by." ("Check," in this context, meant that Frey had received Lord's message.) Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was "enroute" to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.

18

A few minutes later Frey asked Lord by radio, "you got any information on this guy yet?" Explaining this call, Lord testified that "when I gave him [Frey] the information there was PIN information he made the car stop on the strength of that, on the strength of the PIN information. He [now] wants to know what information I have that told him to stop the vehicle." Lord gave Frey the name "LaVerne Williams" and asked him "if there were a LaVerne Williams in the vehicle." Frey replied in the affirmative. Lord told him there were a "couple" of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.

19

Lord testified that under such circumstances "[w]e check and see if the warrants are still outstanding, first of all, and if they are, and then they [the officers outside] can ascertain if they have that person stopped on the street, then they take action concerning the warrant." Pursuing this procedure in the radio conversation, he gave Frey an address for "LaVerne Williams" and said "Let me know if this is the same address or not." Frey asked Lord, "What's his description?" Lord replied "... I don't have the description. Do you have a birth date on him there? We're checking him out right now downstairs."

20

After another brief interval, and just before 5 a.m., this further exchange occurred by radio: "FREY: 1A, it's the same address. He has on his registration 1114-12th Street? RADIO [Lord]: Check. What's his birth date? FREY: He gave me some phony. I guess he caught on. RADIO: Okay, check. It's not necessary, anyway. We're checking him out downstairs there. We'll have the information back in a few minutes. FREY: Check. Thanks." The next relevant radio call, received at 5:03 a.m., was a "940B" ("an officer needs assistance immediately") from Officer Heanes at Seventh and Willow Streets.

21

Officer Heanes testified for the People as follows: He arrived at Seventh and Willow Streets "three to four minutes" after responding by radio to Officer Frey's "cover call." Officer Frey's police car was parked at the south curb of Seventh Street, east of Willow Street and facing east. A [368] beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat; Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification of defendant as the man seated in the driver's seat of the Volkswagen.)

22

After a minute or so, Heanes followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked for identification, had produced the Volkswagen registration and given his name as "LaVerne Williams." While Frey remained in his car, Heanes walked forward to the Volkswagen, addressed defendant as "Mr. Williams," and asked if he had any further identification. Defendant, still seated in the vehicle, said "I am Huey Newton." Frey then approached the Volkswagen and conversed with Heanes, who asked defendant to get out of the car. Defendant asked "if there was any particular reason why he should." Heanes asked him "if there was any reason why he didn't want to." Frey then informed defendant that he was under arrest and ordered him out of the car.

23

Defendant got out of the Volkswagen and walked, "rather briskly" and in a westerly direction, to the rear of the police cars. Frey followed, three or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end of Frey's police car (the second car in line). Defendant walked to the "rear part" of Heanes's car (third in line), Frey still behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both "arms down" at hip level in front of his body.

24

Heanes heard a gunshot and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck his right forearm. He grabbed his arm "momentarily" and noticed, from the corner of his eye, a man standing on the curb between the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man "raised his hands and stated to me he wasn't armed, and he had no intentions of harming me." To the best of Heanes' knowledge, the man's hands were empty.

25

Heanes returned his attention to Officer Frey and defendant, who were "on the trunk lid of my car [the third car in line] tussling." The two were in "actual physical contact" and "seemed to be wrestling all over the trunk [369] area of my car." He next remembered being on his knees at the front door of Frey's (the second) car, approximately "30, 35 feet" from the other two men. Defendant was then facing him; Officer Frey was "facing from the side" of defendant, toward the curb, and appeared to be "hanging onto" him. Holding his gun in his left hand, Heanes aimed at defendant and fired "at his midsection." Defendant did not fall; Heanes saw no one fall at any time. He (Heanes) then heard "other gunshots ... from the area of where Officer Frey and ... [defendant] ... were tussling on the rear part of my car."^[2] Heanes did not see a gun in defendant's hand at any time. He next remembered "laying" in Officer Frey's police car, and calling an "emergency 940B" on its radio. After that, and through the vehicle's rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.

26

Henry Grier, a bus driver employed by AC Transit, gave this testimony for the People: Driving his empty bus westbound on Seventh Street at about 4:58 a.m. on October 28, 1967, he saw the three vehicles parked at the south curb, "about bumper to bumper," west of Willow Street. "Red lights" were flashing on the police cars. He also saw two uniformed police officers and two "civilians" standing together in the street, to his left and next to the Volkswagen. He continued west on Seventh Street to a turnaround point two blocks west of Willow Street, turned without stopping, returned on Seventh Street in an eastbound direction, and stopped to pick up two bus passengers at Willow Street.

27

Continuing east on Seventh Street, Grier again came upon the three parked vehicles. This was four to five minutes after he passed them while headed west. He saw the same flashing lights on the police cars, and three men in the street. Two of them, a police officer and a "civilian," were walking toward the bus. When Grier first saw them, they were 20-25 feet distant from him and a point between the Volkswagen and the first police car parked behind it. The officer was walking a "pace" behind the civilian, and was apparently holding him "sort of tugged under the arm." The third man in the street was another police officer, who was walking in the same direction about "ten paces" behind the first officer and the civilian. [370] (Grier did not then, or again, see the other "civilan" he had noticed when driving west on Seventh Street.)

28

As the first pair drew closer to the bus, which was still "rolling," the civilian pulled a gun from inside his shirt and "spun around." The first police officer "grabbed him by the arm." The two struggled, and "the gun went off." The officer walking behind them "was hit and he fell"; after he was hit, he drew his gun and fired. Grier stopped the bus immediately and called "central dispatch" on its radio. At this point, the first officer and the civilian were struggling near the front door of the bus and within a few feet of Grier. He saw the civilian, standing "sort of in a crouched position," fire several shots into the first officer as the latter was falling forward.^[3] These shots were fired from, or within, a distance of "four or five feet" from the midsection of the officer's body; the last one was fired "in the direction of his back" as he lay, face down, on the ground. While these shots were being fired, Grier was saying on the bus radio, "Get help, a police officer is being shot. Shots are flying everywhere; get help. Help, quick." After firing the last shot at the fallen officer, the civilian "went diagonally across Seventh [Street]." At the trial, Grier positively identified defendant as the "civilian" mentioned in his account of the shootings.

29

Gilbert DeHoyos and Thomas Fitzmaurice, both Oakland police officers, testified for the People as follows: Shortly after 5 a.m. on October 28, 1967, both responded to Officer Heanes' "940B" call for assistance. Officer DeHoyos arrived at Seventh and Willow Streets less than a minute later; Officer Fitzmaurice arrived just behind him. They found Officer Frey lying on the street near the rear of Heanes' police car, still alive, and Heanes in the front seat of Frey's car. They saw no other persons nearby. Officer Heanes told Fitzmaurice that "his leg hurt and his arm and that Huey Newton had done it ... he told me he had fired [at defendant] and I think he hit him ... he [Heanes] thought he hit him."

30

Defendant arrived at the emergency desk of Kaiser Hospital at 5:50 a.m. on the same morning. He asked to see a doctor, stating "I have been shot in the stomach." A nurse called the police. Officer Robert Fredericks arrived and placed defendant under arrest. He (defendant) had a bullet wound in his abdomen. The bullet had entered in the front and exited through the back of his body.

31

Officers Frey and Heanes were taken to Merritt Hospital, where Frey was dead on arrival. He had been shot five times, at approximately the same time but in an unknown order. One bullet entered in the front, and [371] exited through the back, of his left shoulder; another passed through his left thigh, also from front to back. A third (the only one recovered from Frey's body) entered the midback and lodged near the left hip. A fourth creased the left elbow. Another bullet entered the back, traversed the lungs, and exited through the right shoulder in front: this wound caused Officer Frey's death within 10 minutes. Officer Heanes had three bullet wounds: one in his right arm, one in the left knee, one in the chest.

32

Three slugs were recovered: one from Officer Frey's hip, one from Heanes' left knee, and a third which had been lodged in the right front door of the Volkswagen. In addition, two 9-mm. Luger shell casings were found at the scene. One was in the street between the two police cars, the other near the left front bumper of Heanes' car and approximately where Frey was lying. The 9-mm. bullets had been fired from an automatic (Officers Frey and Heanes carried .38-caliber Smith & Wesson revolvers). A live 9-mm. Luger cartridge was found on the floor of the Volkswagen, between the two front seats. Only Officer Heanes' gun was found; he was holding it when the other officers arrived at the scene. Two rounds had been expended from the gun. Neither a Luger nor Officer Frey's revolver was found.

33

Oakland Police Department Officer John Davis testified for the People as follows: Two types of gunpowder, ball and flake, were involved in the shootings. Officer Frey's gunbelt contained high velocity cartridges with ball powder. Officer Heanes' gun used flake powder cartridges; the 9-mm. cartridges also contained flake powder. The three slugs recovered from Officer Frey's body, Heanes' knee and the Volkswagen door were .38-caliber specials fired with ball powder, similar to the cartridges in Officer Frey's gunbelt. The slugs found in both officers' bodies were fired from the same .38-caliber Smith & Wesson revolver, the type of weapon normally carried by Officer Frey; neither had been fired from Heanes' gun, which was of the same type.

34

Davis testified that a gunshot fired into a body from close range (up to "five, six feet," and with variations) will leave powder deposits at the point of impact; a gun firing a high velocity, ball powder bullet would have to be fired from a distance of more than six feet to leave no such deposits. Among several bullet-entry holes in Officer Frey's clothing, three (one in the left thigh and two in the back) were surrounded by ball powder deposits. Davis estimated that these shots were fired at the victim from distances of 12-24 inches, 12 inches and 6-12 inches. The other two entry holes in Frey's clothing (in the shoulder and elbow area) showed no powder deposits, and none appeared at the bullet-entry holes in the clothing worn by Officer Heanes and defendant.

35

[372]

36 37

 

38

Tommy Miller gave this testimony for the defense: He boarded an eastbound bus at Seventh and Willow Streets at about 5 a.m. on October 28, 1967. As the bus moved away from the stop, and the driver was making change for him and another passenger, he saw "red lights and police cars" on Seventh Street, and police officers and another man in the street; one of the officers "had him [the man] up against the car." The witness could identify no faces; it was "too dark," and the persons in the street were facing away from him. Hearing "a lot of gunfire," he laid down in the rear of the bus. When the shooting stopped, he got up and saw, from the back of the bus (which had stopped), a police officer lying on the ground.

39

Gene McKinney, who was also called by the defense, testified that he was defendant's passenger in the Volkswagen at Seventh and Willow Streets. He thereafter pleaded self-incrimination as to any and all subsequent questions, was held in contempt by the trial court, and gave no further testimony.

40

Defendant, testifying in his own behalf, denied killing Officer Frey, shooting Officer Heanes, or carrying a gun on the morning of the shootings. His account of the episode was as follows: He was driving with Gene McKinney on Willow Street, and had just turned into Seventh Street when he noticed a red light through the rear window of the Volkswagen. He pulled over to the curb and stopped. Officer Frey approached the Volkswagen and said "Well, well, well, what do we have? The great, great Huey P. Newton." Frey asked for defendant's driver's license and inquired as to the ownership of the Volkswagen. Defendant handed him his (defendant's) license, and the vehicle registration, and said that the car belonged to LaVerne Williams. Officer Frey returned the license and walked back to his patrol car with the registration.

41

A few minutes later Officer Heanes arrived, conversed with Frey, then walked up to the Volkswagen and asked, "Mr. Williams, do you have any further identification?" Defendant said, "What do you mean, Mr. Williams? My name is Huey P. Newton ..." Heanes replied, "Yes, I know who you are." Officer Frey then ordered defendant out of the car. He got out, taking with him a criminal law book in his right hand. He asked if he was under arrest; Officer Frey said no, but ordered defendant to lean against the car. Frey then searched him, placing his hands inside defendant's trousers and touching his genitals. (Officer Heanes had testified that defendant was not searched at any time.) McKinney, who had also alighted from the Volkswagen, was then standing with Officer Heanes on the street side of the Volkswagen.

42

[373] Seizing defendant's left arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer "kind of pushing" him, past the first police car to the back door of the second one. Defendant opened his book^[4] and said, "You have no reasonable cause to arrest me." The officer said, "You can take that book and stick it up your ass, Nigger." He then struck defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant felt a "sensation like ... boiling hot soup had been spilled on my stomach," and heard an "explosion," then a "volley of shots." He remembered "crawling ... a moving sensation," but nothing else until he found himself at the entrance of Kaiser Hospital with no knowledge of how he arrived there. He expressly testified that he was "unconscious or semiconscious" during this interval, that he was "still only semiconscious" at the hospital entrance, and that — after recalling some events at Kaiser Hospital — he later "regained consciousness" at another hospital.

43

The defense called Bernard Diamond, M.D., who testified that defendant's recollections were "compatible" with the gunshot wound he had received; and that "[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so."

44 45

 

46

Defendant asserts prejudicial error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal homicide. As the record shows — and the Attorney General emphasizes — that defendant's original request for instructions on this subject was "withdrawn," we first recount the sequence in which this occurred. During the trial, defense counsel submitted to the court a formal list requesting — by number only — specified CALJIC instructions pertaining, among other things, to self-defense (322 and 322-A), unconsciousness (71-C and 71-D), diminished capacity and manslaughter.^[5] At the suggestion of all counsel, the court announced that "... [A]rgument and discussion concerning [374] the proposed instruction will be had in chambers and when we get through ... we will come out and place on the record the rulings of the Court ... [on the instructions proposed by both sides] ..." The conference in chambers, which followed, was not reported (although it apparently lasted for several hours). At the opening of the next trial day, this exchange occurred between the court and defense counsel:

47

"THE COURT: Gentlemen, in connection with the instructions, in discussion in chambers the attorneys for the defendant have withdrawn their request for Instruction No. 322, 322A, of CALJIC, being instructions in self-defense. Is that correct, Mr. Garry?

48

"MR. GARRY [defense counsel]: That is correct.

49

"THE COURT: Mr. Newton, you understand that? Meet with your approval?

50

"THE DEFENDANT: Yes, it does.

51

"THE COURT: Now, the attorneys for the defendant have requested that the Court give either 71C and 71D, or give 73B of CALJIC. Now, is that correct?

52

"MR. GARRY: That is correct.

53

"THE COURT: Very well. The Court will give 73B, and at the request of the defendant will not give 71C and 71D. Does that meet with your approval, Mr. Garry?

54

"MR. GARRY: Yes, Your Honor.

55

"THE COURT: Mr. Newton, that has been explained to you and it meets with your approval?

56

"THE DEFENDANT: Yes." (Italics added.)

57

The trial court then enumerated, with some intermittent discussion, the CALJIC and other instructions which be given. This exchange followed:

58

"MR. GARRY: Let the record show that the instructions that have been requested by the defendant that are not being given, of course, will be stated as an objection on our part.

59

"THE COURT: Well, with the exception, of course, of those which have — 322 and 322A — which you have withdrawn, 71C and 71D which, in effect, you have withdrawn, because we are giving 73B —

60

"MR. GARRY: Yes, Your Honor.

61

"THE COURT: Those are the only ones. All the other instructions, yes, [375] I have gone through all of them and they are either not given or else they are covered by other instructions given, and I will make a note, of course, on each instruction ... and file that. You know now what instructions the Court plans to give...."^[6]

62

Thereafter the trial court fully and correctly instructed the jury on murder in the first degree (including the requisite elements of willfulness, deliberation, premeditation and malice aforethought) and in the second (including the element of malice aforethought). At defendant's request, the court also gave instructions on voluntary manslaughter^[7] and diminished capacity.^[8] Pursuant to the judge's intentions as announced in the dialog quoted above, the instructions originally requested by defendant on self-defense (CALJIC 322 and 322-A) and unconsciousness (71-C and 71-D) were not given; the jury was instructed on neither subject.

63

Although the evidence of the fatal affray is both conflicting and confused as to who shot whom and when, some of it supported the inference that defendant had been shot in the abdomen before he fired any shots himself.^[9] [376] Given this sequence, defendant's testimony of his sensations when shot — supplemented to a degree, as it was, by Dr. Diamond's opinion based upon the nature of the abdominal wound — supported the further inference that defendant was in a state of unconsciousness when Officer Frey was shot.

64

(1) Where not self-induced, as by voluntary intoxication or the equivalent (of which there is no evidence here, as we pointed out in fn. 8, ante), unconsciousness is a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd. Five; People v. Graham (1969) 71 Cal.2d 303, 316-317 [78 Cal. Rptr. 217, 455 P.2d 153]; People v. Wilson (1967) 66 Cal.2d 749, 760-762 [59 Cal. Rptr. 156, 427 P.2d 820].) "Unconsciousness," as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist — and the above-stated rule can apply — where the subject physically acts in fact but is not, at the time, conscious of acting.^[10] The statute underlying the rule makes this clear,^[11] as does one of the unconsciousness instructions originally requested by defendant.^[12] (See also People v. Roerman (1961) 189 Cal. App.2d 150, 160-163 [10 Cal. Rptr. 870] and cases cited.) Thus, the rule has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such "unconsciousness" (e.g., People v. Coogler (1969) 71 Cal.2d 153, 157-159, 161-166, 169 [77 Cal. Rptr. 790, 454 P.2d 686]; People v. Wilson, supra, at pp. 752-753, 755-756, 761-763; People v. Bridgehouse (1956) 47 Cal.2d 406, 409-411, 414 [303 P.2d 1018]; People v. Moore (1970) 5 Cal. App.3d 486, 488-490, 492 [85 Cal. Rptr. 194]; People v. Edgmon (1968) 267 Cal. App.2d 759, 762-763, 764 [fn. 5], [73 Cal. Rptr. 634]; People v. Cox (1944) 67 Cal. App.2d 166, 169-173 [153 P.2d 362]), including some in which the only evidence of "unconsciousness" was the actor's own testimony that he did not recall the shooting. [377] (E.g., People v. Wilson, supra, at pp. 755-756, 762; People v. Bridgehouse, supra, at pp. 409-411.)

65

(2) Where evidence of involuntary unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed, is prejudicial error. (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Bridgehouse, supra, 47 Cal.2d 406 at p. 414. See People v. Mosher (1969) 1 Cal.3d 379, 391 [82 Cal. Rptr. 379, 461 P.2d 659]; People v. Coogler, supra, 71 Cal.2d 153 at p. 169.) The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." (People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal. Rptr. 225, 382 P.2d 33] [quoting People v. Carmen (1951) 36 Cal.2d 768, 772-773 (228 P.2d 281)].) (3a) It follows that the evidence of defendant's unconsciousness in the present case was "deserving of consideration" upon a material issue. (People v. Castillo (1969) 70 Cal.2d 264, 270 [74 Cal. Rptr. 385, 449 P.2d 449]; People v. Modesto, supra; People v. Carmen, supra.)

66

Defendant did not request instructions upon unconsciousness; as we have seen, his original request therefor was "withdrawn." (4) But a trial court is under a duty to instruct upon diminished capacity, in the absence of a request and upon its own motion, where the evidence so indicates. (People v. Henderson (1963) 60 Cal.2d 482, 490-491 [35 Cal. Rptr. 77, 386 P.2d 677]; People v. Stines (1969) 2 Cal. App.3d 970, 977 [82 Cal. Rptr. 850].) (5) The difference between the two states — of diminished capacity and unconsciousness — is one of degree only: where the former provides a "partial defense" by negating a specific mental state essential to a particular crime, the latter is a "complete defense" because it negates capacity to commit any crime at all. (See People v. Gorshen (1959) 51 Cal.2d 716 at p. 727 [336 P.2d 492]; People v. Conley (1966) 64 Cal.2d 310, 319 [49 Cal. Rptr. 815, 411 P.2d 911].) (6) Moreover, evidence of both states is not antithetical; jury instructions on the effect of both will be required where the evidence supports a finding of either. (See People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson (1965) 63 Cal.2d 351, 355-356 [46 Cal. Rptr. 863, 406 P.2d 43].) (3b) We hold, therefore, that the trial court should have given appropriate unconsciousness instructions upon its own motion in the present case, and that its omission to do so was prejudicial error. (See People v. Mosher, [378] supra; People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.)

67

The error was prejudicial per se because the omission operated to deprive defendant of his "constitutional right to have the jury determine every material issue presented by the evidence." (People v. Mosher, supra, 1 Cal.3d 379 at p. 391; (People v. Modesto, supra, 59 Cal.2d 722 at pp. 730-731.) Actual prejudice, moreover, is perceptible in the present case. The voluntary manslaughter verdict indicates the jury's decision that defendant shot Officer Frey, but that the jurors found (1) provocation by the officer or (2) dimished capacity on defendant's part, or both. As defendant alone testified to both events, it appears that the jury believed him as to either or both. But, if they fully believed his testimony with respect to his asserted unconsciousness, they had been given no basis upon which to acquit him if they found it to be true. (See People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.) Defense counsel, in fact, argued to the jury defendant's, and Dr. Diamond's testimony on this subject. Absent instructions upon the legal effect of unconsciousness as a complete defense, the argument was necessarily limited and essentially ineffective. It further appears that the jury gave some thought at least, to acquitting defendant upon a finding of justifiable homicide.^[13] Under these circumstances, it is "reasonably probable" that a result more favorable to him — i.e., a verdict acquitting him of the homicide, based upon unconsciousness as a complete defense — would have been reached if the omitted instruction had been given. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

68 69

 

70

As defendant's point on the omission of unconsciousness instructions is thus valid on its merits, the question is whether he is precluded from asserting [379] it on appeal because his original request for such instructions was "withdrawn." He contends in effect that he withdrew his request for CALJIC 71-C and 71-D only because the trial court forced him to choose between them and a Wells-Gorshen instruction on dimished capacity. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]; People v. Gorshen, supra, 51 Cal.2d 716.) The trial court denied this claim when defense counsel asserted it on motion for new trial, nevertheless, the judge's remarks at trial suggest that he (the judge) thought the jury should be given instructions on diminished capacity or unconsciousness, but not upon both.^[14]

71

If the trial court entertained this view at the time of its remarks, it was in error: the defenses of diminished capacity and unconsciousness were "entirely separate," and neither incompatible nor mutually exclusive, under the evidence. (See People v. Baker, supra, 42 Cal.2d 550 at p. 575 [268 P.2d 705]; People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson, supra, 63 Cal.2d 351 at p. 356.) In any event, while the deficient record^[15] does not clearly substantiate counsel's claim that the trial court forced him to a choice, it does not wholly refute him, either; and it tends to explain the court's failure to instruct upon both defenses, upon its own motion, whether counsel correctly understood the situation or not.

72

A similar situation occurred, and was considered on appeal in light of the "invited error" concept, in People v. Graham, supra, 71 Cal.2d 303. In Graham, defense counsel had openly consented to the trial court's omission of a proper instruction and giving an erroneous one. (Id., pp. 317-318.) The Supreme Court first posed the question in terms of "whether the trial court's affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver of defense counsel" (id., pp. 317-318 (italics added)). and cited People v. Phillips (1966) 64 Cal.2d 574, 580-581 [fn. 4], [51 Cal. Rptr. 225, 414 P.2d 353] to the effect that such "waiver" foreclosed [380] complaint on appeal only where "the record indicated a `deliberate' or `expressed' tactical decision by counsel to forego a particular instruction which the court is otherwise obliged to render to the jury." (People v. Graham, supra, at p. 318 (italics in the original).)

73

The Graham court went on to hold that "invited error" will not originate, so as to foreclose complaint on appeal, by reason of counsel's neglect or mistake: "[O]nly if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court's obligation to instruct in the cause." (People v. Graham, supra, 71 Cal.2d 303 at p. 319 (italics added).) This rule applies with equal effect in the present case, where defense counsel's asserted "waiver" consisted of failing to press for instructions upon unconsciousness, and the Graham court said as much: "This formulation correctly resolves the competing considerations of the underlying policies relevant to the problem. On the one hand, the attorney should exercise control over his case and bear responsibility for tactical decisions reached in the course of his representation. On the other hand, the Legislature has indicated that instructions which affect the substantial rights of a defendant should be subject to review, even though his counsel, through neglect or mistake, has failed to object to them. Indeed, this court has held that a trial judge must on his own motion fully and correctly instruct the jury on general principles of law, regardless of the failure of defense counsel to offer such instructions or to object to their omission." (Id., at pp. 319-320 [italics added].)

74

The self-defense instructions originally requested by defendant (CALJIC 322 and 322-A) were wholly inconsistent with his testimony that he he did not kill Officer Frey or shoot Officer Heanes. Accordingly, we can discern a "deliberate tactical purpose" in his counsel's withdrawing the request for them. Defendant's denial of the shootings, however, went no further than his own conscious recollections as recited in his testimony; the denial was not inconsistent with the hypothesis that he fired a gun while — and not before — he was in a state of "unconsciousness" as such state has previously been defined herein. Against the substantial evidence that it was he who shot Officer Frey, the instructions he requested on diminished capacity afforded him partial defenses at best. As only instructions upon unconsciousness offered a complete defense (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Mosher, supra, 1 Cal.3d 379 at p. 391), his counsel's "withdrawal" of them, or the failure to press for them, is irreconcilable with "deliberate [381] tactical purpose" on counsel's part. (Cf. People v. Phillips, supra, 64 Cal.2d 574 at pp. 580-581 [fn. 4 and cases cited].)

75

(7) The "withdrawal" of the critical instructions — to the extent that the event appears^[16] — can perhaps be ascribed to "neglect or mistake" (People v. Graham, supra, 71 Cal.2d 303 at p. 319), or "ignorance or inadvertence" (id., at p. 320) on the part of defense counsel. Whatever the reason for it, though, no "deliberate tactical purpose" appears and we can conceive of none. Under these circumstances, the "invited error" doctrine does not foreclose defendant from asserting his point on the appeal. (Id., at p. 319.) Since we have sustained the point on its merits, the judgment must be reversed.

76

We also sustain certain other claims of trial error advanced by defendant on the appeal. As the error in the instructions alone requires reversal, we need assess none of the other errors in terms of prejudicial effect. Some of them warrant discussion although they will not recur; others require it because of the prospect of a retrial. They relate to (1) an extrajudicial statement given to the police by the witness Henry Grier, (2) the grand jury testimony of Dell Ross concerning the kidnaping charged in count Three of the indictment, and (3) defendant's prior felony conviction.

77 78

 

79

Henry Grier's eyewitness account of the shooting affray (summarized supra) was the only direct trial evidence that defendant was the person who fatally shot Officer Frey; Grier's in-court identification of defendant was positive in this respect. He had given a tape-recorded statement to the Oakland police, on the morning of the shootings and less than two hours afterward. As recited in the written transcript of the October 28 statement, his narrative version of the shooting episode did not materially vary from that given in his trial testimony. In the statement as transcribed, however, he described Officer Frey's assailant as "very short ... sort of pee-wee type fellow ... no more [than] five feet" in height, weighing "125 pounds" and wearing a dark shirt and light jacket. Grier testified at the trial that Frey's assailant was of "medium height and build" (consistent with the physical measurements of defendant, who is 5 feet 10 inches tall and weighs 165 pounds) and wore a light shirt and dark jacket. Emphasizing [382] these discrepancies in cross-examining Grier, defense counsel made extensive use of the October 28 transcript to impeach the witness' in-court identification of defendant. Counsel also read the full transcript to the jury. The copy used for these purposes, as made available to the defense by the prosecution at the time of trial, showed the following question put to Grier by the police on the morning of the shootings, and his answer thereto:

80

"Q" [By the interrogating police officer] About how old was [Officer Frey's assailant]?

81

"A. I couldn't say because I only had my lights on, I couldn't — I did get a clear picture, clear view of his face but — because he had his head kind of down facing the headlights of the coach [Grier's AC Transit bus] and I couldn't get a good look — " (Italics added.)

82

Arguing to the jury, defense counsel cited the passage of the transcript wherein Grier had said he "couldn't get a good look," but omitted any reference to his statement that he "did get a clear picture, clear view" of the assailant's face. Responding in his closing argument, the prosecutor repeatedly reminded the jury of the latter statement. During its deliberations, the jury asked to see a copy of the transcript. Defense counsel, having mutilated his copy during his jury argument, requested another copy from the prosecution. According to the new copy he received, Grier had said, in the above-quoted context of the October 28 statement, that "I didn't get a clear picture, clear view of his face ..." (Italics added.)

83

The defense immediately moved to reopen the case so that the jury could be apprised of newly discovered evidence. The court denied the motion. Having then obtained the original October 28 police recording of Grier's statement, the defense again moved to reopen. This time, after hearing a playback of the recording, the court found that Grier had indeed said "didn't" in the context quoted above. The judge again refused to reopen, but stated that some action should be taken to provide the jury with a corrected version of the Grier statement. The court thereupon ordered that a "correction" be made in the written transcript, and that a corrected copy of the document be "sent to the Jury just in an ordinary manner without any comment or instructions." The transcript was sent to the jury with the word "did" corrected to read "didn't," but without explanation or notice of the change.

84

(8) Defendant contends that the trial court abused its discretion in refusing to reopen the case. The Attorney General's only argument is to the effect that defendant cannot now complain because his attorney approved the procedure followed by the trial court in sending the corrected transcript to the jury. Defense counsel did indicate his approval of the procedure [383] when the trial court proposed it, but this was after defendant's first motion to reopen had been denied and the court had indicated its intention to deny the second. At that point, counsel had the choice of approving the procedure or having no correction sent to the jury at all. Under the circumstances, he cannot be said to have waived the right to challenge the court's denial of his motions to reopen.

85

(9) The trial court clearly had discretion to order the case reopened (Pen. Code §§ 1093, 1094; People v. Berryman (1936) 6 Cal.2d 331, 338-339 [57 P.2d 136]; People v. Richardson (1961) 192 Cal. App.2d 166, 169 [13 Cal. Rptr. 321]), even after the jury deliberations had begun (People v. Christensen (1890) 85 Cal. 568, 570 [24 P. 888]. See Stoumen v. Munro (1963) 219 Cal. App.2d 302, 319 [33 Cal. Rptr. 305]; Annot., 87 ALR2d 849, 851 et seq.) (10) Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made (see People v. Carter (1957) 48 Cal.2d 737, 757 [312 P.2d 665]), the diligence shown by the moving party in discovering the new evidence (Fernandez v. United States (9th Cir.1964) 329 F.2d 899, 903), the prospect that the jury would accord it undue emphasis (Eason v. United States (9th Cir.1960) 281 F.2d 818, 821-822, and the significance of the evidence. (People v. Carter, supra, at p. 755.)

86

Reopening — and its conceivably attendant consequences in terms of further proof, argument and instructions — would have been inconvenient because of the stage of the proceedings at which defendant moved, but it was neither impossible nor unreasonable. (See People v. Carter, supra, 48 Cal.2d 737 at p. 757; Witkin, Cal. Criminal Procedure (1963) § 434, pp. 435-436 and cases cited.) Reopening was not precluded by any lack of diligence on the part of the defense,^[17] and the trial court could have minimized the possibility that the jury would overemphasize the newly discovered evidence.

87

Whether the new evidence — i.e., the single word change required and made in the transcript of Grier's pretrial statement — was vital and material is arguable either way. Still, Grier was the only witness who positively identified defendant as Officer Frey's assailant. (11) Whether he "did" or "didn't" see the assailant's face was material, especially in light of the [384] discrepancies in his separate descriptions of the person he claimed to have seen shooting Officer Frey. The prosecution had vigorously emphasized the word "did" in defending the credibility of Grier's in-court indentification of defendant. The latter was entitled to have the jury consider the possibility, however remote, that someone other than he (e.g., Gene McKinney, whose role in the shooting episode is obscure, under the evidence, to the point of mystery) had engaged in the fatal scuffle with the officer. The jury had indicated its interest in these matters by requesting a copy of the transcript of Grier's pretrial statement. Under all the circumstances, we conclude that the trial court abused its discretion in denying defendant's motions to reopen the case.

88 89

 

90

Before the grand jury which produced the indictment charging defendant, in count Three, with kidnaping Dell Ross on October 28, 1967, Ross testified in pertinent part as follows: Sitting in his parked automobile near Seventh and Willow Streets on that date, he heard several gunshots. Two men (one of them defendant, whom Ross identified to the grand jury from a photograph) entered his car. Defendant ordered him, at gunpoint, to drive the pair to a specified street corner in Oakland. Ross complied. While in his car, both men made several statements, quoted by Ross to the grand jury, which implicated defendant in the shooting episode and were highly damaging to his defense in the present prosecution.

91

When called by the People as a trial witness, and upon the advice of counsel (who appeared with him) Ross pleaded self-incrimination and refused to answer any questions concerning the morning of October 28, 1967. At the request of the prosecution and pursuant to Penal Code section 1324, the trial court granted him immunity and ordered him to testify. Although Ross continued to refuse upon the ground of self-incrimination, he soon indicated that he did not remember what happened on October 28 or testifying to the grand jury. Upon this basis, the prosecutor showed him a copy of the transcript of his grand jury testimony and asked whether it refreshed his memory. When Ross said that he could not read, and over defense objections, the prosecutor then read all his grand jury testimony to the trial jury.

92

The trial court instructed the jury that the grand jury testimony, and the defense tape recording, were admitted for impeachment only and not for the truth of the matters asserted in either. Several trial days later, upon motion by the defense, the trial court ordered stricken from the record "the entire testimony of ... [Dell Ross] ..., and all questions asked of and answers given by said witness, including papers and recordings [385] and all statements heretofore made by any counsel, or by the Court, in connection with said witness"; instructed the jury to disregard such evidence; and entered a verdict of acquittal on the kidnaping charge for the stated reason that "the evidence now before the Court is insufficient to sustain a conviction of such offense."

93

In light of several considerations (the trial court's order striking the Ross testimony to the grand jury, its admonition to the trial jury to disregard it, its order acquitting defendant of the Ross kidnaping, and the degree of the jury's verdict on the homicide charge), it is questionable whether the reading of the grand jury testimony was prejudicial error. It was, however, error which should not recur if defendant is retried.^[18] (12) Because of Ross's inability or refusal to recall his testimony to the grand jury, the defense had no opportunity to cross-examine him concerning that testimony. The reading thereof to the trial jury, consequently, operated to violate defendant's Sixth Amendment right of confrontation. (U.S. Const., 6th Amend.; Douglas v. Alabama (1964) 380 U.S. 415, 419-420 [13 L.Ed.2d 934, 937-938, 85 S.Ct. 1074]; see California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930].) (13) Nor can the action be justified as impeachment. A party's right to impeach his own witness (Evid. Code, §§ 785, 780 [subd. (h)], 769, 770) is not available where, as here, the witness has not testified against the impeaching party at all: "there is nothing to counteract," and the prior statement emerges as substantive evidence of the facts asserted in it. (People v. Newson (1951) 37 Cal.2d 34, 41 [230 P.2d 618].)

94

[386]

95 96

 

97

As charged in the indictment and found by the jury, defendant was convicted of a felony (assault with a deadly weapon) in 1964. He represented himself at the 1964 trial. The conviction was affirmed by this court in an unpublished decision filed in 1965 (People v. Newton (1965) 1 Crim. 4908 [certified for nonpublication]); the Supreme Court denied defendant's petition for hearing. During jury voir dire in the present prosecution, defendant moved to strike the prior conviction from the indictment, and for a protective order forbidding its "mention" at the murder trial, upon the Sixth Amendment ground that his waiver of counsel in the 1964 proceedings had been ineffective. The trial court read into the record the full appellate court decision in which the prior conviction was affirmed in 1965; stated that the appellate court had therein considered all of defendant's current contentions; and denied his motion without an evidentiary hearing.

98

(14) Where a prior conviction is constitutionally invalid because the accused was deprived of his Sixth Amendment right to counsel or did not effectively waive it, utilization of the conviction in a subsequent prosecution to support his guilt, enhance his punishment, or impeach his testimonial credibility, is constitutional error. (Burgett v. Texas (1967) 389 U.S. 109, 114-116 [19 L.Ed.2d 319, 324-326, 88 S.Ct. 258]; People v. Coffey (1967) 67 Cal.2d 204, 218-219 [60 Cal. Rptr. 457, 430 P.2d 15].) When he raises the issue in the subsequent prosecution by moving to strike the prior or by denying it (upon constitutional grounds in either instance), the trial court must hold a hearing outside the presence of the jury and make a relevant finding based upon evidence there presented. (People v. Coffey, supra, at pp. 217-218.) The required hearing must be conducted even if the issue arises during the trial, so long as the objection is asserted before the case is submitted to the jury. (People v. Curtis (1969) 70 Cal.2d 347, 359-361 [74 Cal. Rptr. 713, 450 P.2d 33].)

99

The People contend that defendant's motion to strike was invalid on procedural and formal grounds. We need not here set forth the details of the motion as challenged by the Attorney General in this regard; they are intricate, and are unlikely to recur if defendant again mounts a constitutional attack upon the 1964 conviction. It suffices to say that we reject the Attorney General's procedural and formal objections to the motion, and that, fairly read with the declaration by counsel which was filed in support thereof, the motion unmistakably advanced the claim that the 1964 trial court had permitted defendant to represent himself at the assault trial without inquiring into his ability to do so. (15) Recent decisions establish [387] that such inquiry is required before a waiver of counsel can be accepted by a trial court. (E.g., People v. Carter (1967) 66 Cal.2d 666, 672 [58 Cal. Rptr. 614, 427 P.2d 214]; People v. Armstrong (1969) 274 Cal. App.2d 297, 303 [79 Cal. Rptr. 223].) While defendant's motion and its supporting declaration were drafted inartfully and in obvious haste, they presented a reasonably "clear allegation" by defendant "to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented." (Original italics.) (People v. Coffey, supra, 67 Cal.2d 204 at p. 215 [quoting People v. Merriam (1967) 66 Cal.2d 390, 397 (58 Cal. Rptr. 1, 426 P.2d 161)].)

100

The People also argue that defendant's Sixth Amendment point, as addressed to the 1964 conviction, was resolved against him on the 1965 appeal. We disagree: the 1965 decision noted that he had waived counsel by insisting upon representing himself at the assault trial, but the point now advanced — that his waiver of counsel was ineffective for lack of an appropriate inquiry by the trial court in 1964 — was neither raised nor resolved on the former appeal. (16) As the right to assistance of counsel at the former trial "applies retrospectively without regard to time" (People v. Coffey, supra, 67 Cal.2d 204 at p. 214) for purposes of the present case, the trial court erred in failing to conduct an evidentiary hearing upon defendant's motion to strike. (Id., at pp. 214-218.)

101

(17) In the motion, defendant also attacked the prior conviction upon the Fifth Amendment ground that the 1964 trial court permitted him to testify (he being unrepresented by counsel) without advising him of his right not to do so. (See People v. Wells (1968) 261 Cal. App.2d 468, 481 [68 Cal. Rptr. 400]; People v. Glaser (1965) 238 Cal. App.2d 819, 828-829 [48 Cal. Rptr. 427].) Because of the inadequacy of defendant's showing, on the motion, that he was unaware of his right not to testify at the 1964 trial (see People v. Glaser, supra, at pp. 832-833), we perceive no error in the trial court's denial of his motion with respect to his Fifth Amendment point. (We do not hold as the law of the case that he is precluded from asserting the point again. The problem may not present itself; a ruling by the trial court on his Sixth Amendment point may render it moot.)

102

Defendant has made certain other contentions which warrant discussion because of the prospect that his prosecution will continue. First among these are his arguments challenging the validity of his indictment by the grand jury and the manner in which the trial jury was selected. (He raised both questions with pretrial motions, which the trial court denied.)

103

[388]

104 105

 

106

(18) Contrary to defendant's first several contentions relative to his indictment by the grand jury, we hold as follows: (1) The laws of this state which permit a prosecutor to proceed against an accused by way of either information or grand jury indictment, at the prosecutor's option (Cal. Const., art. I, § 8; Pen. Code, §§ 682, 737), are constitutional. (People v. Flores (1969) 276 Cal. App.2d 61, 65-66 [81 Cal. Rptr. 197].) (19) (2) Defendant was not, by reason of the grand jury proceedings which produced his indictment, unconstitutionally denied the procedural rights which would have been available to him at a preliminary examination. (People v. Flores, supra.) (20) (3) The California statutes controlling the selection of grand jurors (Pen. Code, § 894 et seq.) are constitutional. (Turner v. Fouche (1970) 396 U.S. 346, 353-355 [24 L.Ed.2d 567, 575-576, 90 S.Ct. 532]; Carter v. Jury Commission (1970) 396 U.S. 320, 329-337 [24 L.Ed.2d 549, 557-561, 90 S.Ct. 518]; Smith v. Texas (1940) 311 U.S. 128, 130-131 [85 L.Ed. 84, 86-87, 61 S.Ct. 164].)

107 108

 

109

Defendant next contends that the above-cited grand jury selection statutes, as applied in Alameda County, resulted in unconstitutional discrimination against young persons, low income groups and black persons.^[19] According to the evidence produced upon his pretrial motion in this regard, the membership of the grand jury which indicted him was drawn from among persons who had been nominated to the grand jury by each of the county's 20 superior court judges. (Pen. Code, § 903.4.) The presiding judge of the superior court (for 1967) testified that he had selected his three nominees from among his personal acquaintances. There was no evidence of the selection practices followed by other judges in connection with the 1967, or any other, grand jury.

110

(21) The constitutional standards controlling the selection of grand jurors are the same as for petit jurors. (Pierre v. Lousiana (1939) 306 U.S. 354, 362 [83 L.Ed. 757, 762, 59 S.Ct. 536].) (22) They must be selected in a manner which does not systematically exclude, or substantially underrepresent, the members of any identifiable group in the community. (Whitus v. Georgia (1967) 385 U.S. 545, 548-552 [17 L.Ed.2d 599, 602-605, 87 S.Ct. 643] Hernandez v. Texas (1954) 347 U.S. 475, 476-478 [389] [98 L.Ed. 866, 869-870, 74 S.Ct. 667]; People v. White (1954) 43 Cal.2d 740, 749-753 [278 P.2d 9]). (23) Such "purposeful discrimination," however, "may not be assumed or merely asserted"; it must be proved (Swain v. Alabama (1965) 380 U.S. 202, 205 [13 L.Ed.2d 759, 764, 85 S.Ct. 824]), and defendant bore the burden of making a prima facie case that it existed here. (Whitus v. Georgia, supra, at p. 550 [17 L.Ed.2d at pp. 603-604].) He presented to the trial court little or no evidence concerning the racial composition of any Alameda County grand jury or grand jury panel. He showed a breakdown of certain grand jurors according to their occupations, but this does not demonstrate "purposeful discrimination" against poor people or anyone else. (See Fay v. New York (1947) 332 U.S. 261, 273-277 [91 L.Ed. 2043, 2052-2054, 67 S.Ct. 1613].) There was some evidence to the effect that all or most of the members of the 1967 grand jury (which indicted him) were middle-aged persons; again, however, systematic exclusion of the young is not shown. Defendant having failed to make a prima facie case that the 1967 grand jury was constitutionally infirm in any respect pertaining to its selection, he cannot challenge the validity of the indictment upon the ground asserted.

111 112

 

113

Defendant contends that the trial jury panel, and the jury itself, were unconstitutionally selected. While we need not consider his arguments relating to administrative excuses from jury service, challenges for cause, and peremptory challenges, we discuss those points which will be relevant in the event of retrial. The first is addressed to the fact that the names of the prospective trial jurors were drawn from the latest Alameda County voter registration lists, at random but from no other source.

114

On defendant's pretrial motion attacking the venire, his witnesses testified that the selection of jurors exclusively from voter lists results in underrepresentation of poor persons and black persons on juries, because such people are less likely to be registered voters. According to defendant's statistics, the voter registration rate in the predominantly black-populated areas of West Oakland, South Oakland and South Berkeley (all of which are in Alameda County) is 64.7 percent, whereas the countywide rate is 82 percent. One of his witnesses testified that black persons constitute about 7.5 percent of jury panels when voter registration lists are the sole source of prospective jurors' names. Black persons constitute 12.4 percent of Alameda County's population.

115

(24) As registration to vote is not a condition of eligibility for jury service in this state (see Code Civ. Proc., §§ 198, 199), the county's discretion to use voter registration lists as the source of jurors is subject to the constitutional requirement that juries must reasonably reflect a cross-section [390] of the community. (Smith v. Texas, supra, 311 U.S. 128 at p. 130 [85 L.Ed. 84 at p. 86]; People v. White, supra, 43 Cal.2d 740 at p. 749.) (25) While each jury roll or venire need not be a perfect mirror of the community (Swain v. Alabama, supra, 380 U.S. 202 at p. 208 [13 L.Ed.2d 759 at p. 766]; People v. White, supra), any substantial disparity, over a period of time, between a group's percentage thereon and its percentage in the eligible population is prima facie evidence of discrimination, regardless of the source of jurors, and shifts the burden to the prosecution to justify the discrepancy. (Turner v. Fouche, supra, 396 U.S. 346 at p. 360 [24 L.Ed.2d 567 at p. 579]; Whitus v. Georgia, supra, 385 U.S. 545 at pp. 550-552 [17 L.Ed.2d 599 at pp. 603-605].) The disparity claimed in the present case, however (7.5 percent versus 12.4 percent) is not so substantial as to produce this result. (Swain v. Alabama, supra, at pp. 205, 209 [13 L.Ed.2d at pp. 764, 766] (10-15 percent vs. 26 percent). Compare Turner v. Fouche, supra (37 percent vs. 60 percent); Sims v. Georgia (1967) 389 U.S. 404, 407 [19 L.Ed.2d 634, 637, 88 S.Ct. 523] (4.7-9.8 percent vs. 24.4 percent); Whitus v. Georgia, supra, 385 U.S. 545, 550-552 [17 L.Ed.2d 599, 603-605] (7.8-9.1 percent vs. 27.1 percent). See Kuhn, Jury Discrimination (1968) 41 So.Cal.L.Rev. 235, 251-257 and data cited passim.)

116

The record does not sustain defendant's contention that black persons were underrepresented on the trial jury panel; of the 160 prospective jurors examined, about 13 percent were black persons.^[20] He presented no evidence of the economic status of any of the panel members to support his charge that poor persons were excluded from, or substantially underrepresented on, the panel. On the showing made, we cannot conclude that unconstitutional discrimination, on racial or economic grounds, occurred in the selection of prospective jurors.

117

(26) We also reject defendant's argument that, because of the nature of the case (involving a fatal altercation between a black defendant and white police officers), he was entitled to have at least one resident of West Oakland (described as a "black ghetto") serve on his trial jury.^[21] (27) "Of course, these premises misconceive the scope of the right to an impartially selected jury assured by the Fourteenth Amendment. That right does not entitle one accused of crime to a jury tailored to the circumstances [391] of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any arbitrary and systematic exclusions. (Citation.)" Hoyt v. Florida (1961) 368 U.S. 57, 59 [7 L.Ed.2d 118, 120-121, 82 S.Ct. 159].)

118

Certain claims of trial error should also be mentioned. (28, 29) Contrary to defendant's contention as to each point, we hold as follows: (1) The trial court did not err in instructing the jury on flight and motive. The evidence supported the instructions given, and defendant's proposed modifications of the standard instructions on these subjects were properly refused because they emphasized specific evidence. (People v. Hughes (1951) 107 Cal. App.2d 487, 494 [237 P.2d 64]; Witkin, Cal. Criminal Procedure, op. cit., supra, § 477, pp. 484-485.) (2) Defendant's requested instruction on unlawful detention was also properly refused. (30) Unlawful detention by a police officer does not justify unlawful resistance thereto. (Pen. Code, § 834a; People v. Curtis (1969) 70 Cal.2d 347, 352 [74 Cal. Rptr. 713, 450 P.2d 33].)

119

(3) The trial court did not err in excluding the proffered testimony of defense witnesses Burton, Quinones, Daniels, Harris and Brown. (31) Burton's testimony, offered to prove past mistreatment of black persons by Officer Frey (a subject upon which the trial court gave the defense considerable latitude), was not probative on that subject and was cumulative to the testimony of other defense witnesses. (32) Quinones' testimony would have been to the effect that police officers harassed defendant at the hospital after the shootings; that of the other three, that the prosecution had offered to pay for information concerning this case. Neither subject was relevant.

120

(33) (4) The trial court did not unduly restrict the voir dire of prospective jurors concerning their racial attitudes. The record shows that the defense was given full latitude in asking questions pertaining to possible racial bias and their knowledge and viewpoints on such matters as the "Black Panther Party," fair housing, "black power" and various political and other organizations.

121

Other points raised on the appeal need not be discussed.

122

The judgment of conviction is reversed.

123

Devine, P.J., and Christian, J., concurred.

124

On June 26, 1970, the opinion was modified to read as printed above. Respondent's petition for a hearing by the Supreme Court was denied July 29, 1970. McComb, J., was of the opinion that the petition should be granted.

125

[1] "PIN" means "Police Information Network," a computerized system which stores and reports information concerning outstanding warrants associated with identified motor vehicles.

126

[2] Although Officer Heanes' testimony was clear to the effect that he heard the first shot, and was struck in the arm, before anything else happened, it was ambiguous as to the sequence in which the subsequent shots were fired. His first account, on direct examination, indicated that he fired at defendant's "midsection," and from a kneeling position, before he heard the "other gunshots" mentioned. His later testimony to the same events, under cross-examination and upon redirect, suggested that he heard the "other gunshots" before he fell to his knees and fired at defendant. As will appear, he fired another shot, and was himself shot again twice, during the episode described. He did not remember these events. and testified that he "blacked out," and had a "lapse of memory," after he was shot in the arm.

127

[3] Grier expressly testified to the sequence of shots stated here: i.e., that "the gun went off" the first time; the second officer "was hit and he fell," and fired his own gun; and the civilian thereafter fired "several shots" at the first officer.

128

[4] A criminal lawbook, with defendant's name inscribed inside, was found in a pool of blood near Officer Frey.

129

[5] On diminished capacity, defendant requested CALJIC 73-B (Revised) and 305.1 (New); on manslaughter, CALJIC 305-AA (New), 308 (Revised), 308-A (Revised), 310 (Revised), 311 and 311-B. This cause was tried before the publication (in 1970) of the current (third) edition of CALJIC; the work cited at the trial was the revised (1966) edition of CALJIC (California Jury Instructions — Criminal) as supplemented through its 1967 cumulative pocket part.

130

[6] Defendant's formal list requested 31 CALJIC instructions, referring to each by its number only. According to the trial court's "note" later written by the entries requesting CALJIC 322 and 322-A (on self-defense), and 71-C and 71-D (on unconsciousness), each of these requests was shown to have been "Withdrawn."

131

[7] CALJIC 308-A (Rev.) ("Voluntary manslaughter is the intentional and unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion without deliberation or premeditation"), 311 (concerning "provocation" and "heat of passion"), 305-AA (New) and 311-B.

132

[8] The court gave the two CALJIC instructions requested by defendant on this subject: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged" (CALJIC 73-B [Rev.]); and

133

"If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree." (CALJIC 305.1 [New].)

134

(We mention in passing that there was no evidence that defendant was mentally ill or intoxicated at the time of the shootings.)

135

[9] Defendant's testimony suggested that Officer Frey wounded him with the first shot fired. However, the absence of powder deposits on his (defendant's) clothing would indicate that Officer Heanes, not Frey, shot him. Grier's testimony was explicit as to this sequence: i.e., that Heanes. struck by the first bullet fired, shot at defendant before the latter commenced firing at Frey. (See text at fn. 3, ante.) Heanes' account, while less precise on this subject (see text at fn. 2, ante) also supports the inference that he shot defendant (in the "midsection") before Officer Frey was shot by anyone.

136

[10] As was true of Officer Heanes, according to his testimony (see fn. 2, ante), during part of the shooting episode in the present case.

137

[11] Penal Code section 26 provides in pertinent part that "All persons are capable of committing crimes except those belonging to the following classes: ... Five-Persons who committed the act charged without being conscious thereof." (Italics added.)

138

[12] CALJIC 71-C, which read in pertinent part as follows: "Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime...." (Italics added.)

139

[13] The jurors deliberated for four full days, during which they were twice reinstructed, by request, on murder in both degrees, voluntary manslaughter, provocation, heat of passion, diminished capacity, and assault. On one of these occasions, they apparently asked for instructions on "justifiable homicide," which had not been given in the first instance (and were not given when requested). The actual request — which was apparently in writing — does not appear of record, but the trial judge recalled it at a post-judgment hearing conducted for the purpose of correcting the reporter's transcript. The prosecutor declined to stipulate that the request was made, but stipulated that the judge's recollection thereof "may be put in the record." Since the event recalled stands uncontroverted, the jury's interest in "justifiable homicide" is thus a matter of record.

140

It also bears mentioning that, during their lengthy deliberations, the jurors asked to see, and were shown, the bullet wounds in defendant's body.

141

[14] We refer to the court's statements, quoted supra, that defense counsel had requested "either" CALJIC 71-C and 71-D (on unconsciousness) "or" 73-B (on diminished capacity); that the court would "give 73B and at the request of the defendant will not give 71C and 71D"; and that defense counsel's objections to omitted instructions did not reach "71C and 71D which, in effect, you have withdrawn, because we are giving 73-B ..."

142

[15] The record is deficient, of course, because the conference in chambers was unreported. This was not by stipulation of the parties, so far as appears, and it should not have occurred in this particular — and highly important — instance. (See Code Civ. Proc., § 269.)

143

[16] Because the conference in chambers went unreported (see fn. 15, ante), the record sheds no real light on this subject; the only relevant events of record are defense counsel's affirmative — and laconic — answers to the trial court's inquiries during the successive dialogs quoted, supra, from the trial proceedings. We accord no significance to defendant's similar responses.

144

[17] The Attorney General disputes the fact stated here, but he does so within the broader context of defendant's contention, on the appeal, that the prosecution's conduct in connection with Grier and his pretrial statement amounted to suppression of evidence. Defendant's contention involves the progression and effect of several pretrial motions and orders dealing with defense discovery; it was presented to the trial court, which rejected it; and, having examined it on the appeal, we conclude that no error appears in this regard. In all events, the footnoted statement stands.

145

[18] We have in mind the fact that, while the grand jury testimony of Ross no longer bears upon the kidnaping charge of which defendant was acquitted, it remains relevant to the homicide charge upon which he will presumably be retried.

146

[19] Defendant is a black person.

147

[20] Defendant points out that the number of prospective jurors examined does not produce a definitive percentage as stated here, because there were others on the panel; consequently, he argues. the actual percentage of black persons on the full panel cannot be determined. The percentage stated here, however, is the only figure supported by the record he was obligated to make.

148

[21] One black man, not a resident of West Oakland, served on the jury.

1532 F.2d 697 (1976) 2

UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Demore JEWELL, Defendant-Appellant.

3No. 74-2832. 4

United States Court of Appeals, Ninth Circuit.

5February 27, 1976. 6Certiorari Denied July 21, 1976. 7

 

8

[698] Robert W. Ripley, Jr., San Diego, Cal., for defendant-appellant.

9

William A. Bower, Asst. U. S. Atty., on the brief, James W. Meyers, Asst. U. S. Atty., on the petition for rehearing, Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

10

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.

11

Certiorari Denied July 21, 1976. See 96 S.Ct. 3173.

12 13

 

14

BROWNING, Circuit Judge:

15

We took this case in banc to perform a simple but necessary "housekeeping" chore. The opinion in United States v. Davis, 501 F.2d 1344 (9th Cir. 1974), refers to possession of a controlled substance, prohibited by 21 U.S.C. § 841(a)(1), as a "general intent" crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent "to manufacture, distribute, or dispense." United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). The jury was so instructed in this case. We are unanimously of the view that this instruction reflects the only possible interpretation of the statute. The contrary language in Davis is disapproved.

16

This does not mean that we disapprove the holding in Davis. On the contrary, we are unanimously of the view that the panel in Davis properly held that "The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing." 501 F.2d at 1346. We restrict Davis to the principle that a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses. Cf. United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975).

17

In the course of in banc consideration of this case, we have encountered another problem that divides us.

18

Appellant defines "knowingly" in 21 U.S.C. §§ 841 and 960 to require that positive knowledge that a controlled substance is involved be established as an element of each offense. On the basis of this interpretation, appellant argues that it was reversible error to instruct the jury that the defendant could be convicted upon proof beyond a reasonable doubt that if he did not have positive knowledge that a controlled substance was concealed in the automobile he drove over the border, it was solely and entirely because of the conscious purpose on his part to avoid learning the truth. The majority concludes that this contention is wrong in principle, and has no support in authority or in the language or legislative history of the statute.

19

It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marihuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was [699] false.^[1] On the other hand there was evidence from which the jury could conclude that appellant spoke the truth — that although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery.^[2] If the jury concluded the latter was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.

20

Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marihuana. The trial judge rejected the instruction because it suggested that "absolutely, positively, he has to know that it's there." The court said, "I think, in this case, it's not too sound an instruction because we have evidence that if the jury believes it, they'd be justified in finding he actually didn't know what it was — he didn't because he didn't want to find it."

21

The court instructed the jury that "knowingly" meant voluntarily and intentionally and not by accident or mistake.^[3] [700] The court told the jury that the government must prove beyond a reasonable doubt that the defendant "knowingly" brought the marihuana into the United States (count 1: 21 U.S.C. § 952(a)), and that he "knowingly" possessed the marihuana (count 2: 21 U.S.C. § 841(a)(1)). The court continued:

22

The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

23

 

24

The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, "One with a deliberate anti-social purpose in mind . . . may deliberately `shut his eyes' to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having `knowledge' of the facts as they are ultimately discovered to be."^[4] J. Ll. J. Edwards, writing in 1954, introduced a survey of English cases with the statement, "For well-nigh a hundred years, it has been clear from the authorities that a person who deliberately shuts his eyes to an obvious means of knowledge has sufficient mens rea for an offence based on such words as . . . `knowingly.'"^[5] Professor Glanville Williams states, on the basis both English and American authorities, "To the requirement of actual knowledge there is one strictly limited exception. . . . [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge."^[6] Professor Williams concludes, "The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law."^[7]

25

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

26

This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: "When knowledge of the existence of a particular fact is an element of an offense, such [701] knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist."^[8] As the Comment to this provision explains, "Paragraph (7) deals with the situation British commentators have denominated `wilful blindness' or `connivance,' the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist."^[9]

27

The Supreme Court, in Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 1553, 23 L.Ed.2d 57, 87 (1969), applied the Model Penal Code definition of knowledge in determining the meaning of "knowing" in former 21 U.S.C. § 176a. In Turner v. United States, 396 U.S. 398, 416 & n.29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610, 623 (1970), the Court adopted the Model Penal Code definition in defining "knowingly" in 21 U.S.C. § 174.^[10] The Turner opinion recognizes that this definition of "knowingly" makes actual knowledge unnecessary: "[T]hose who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled." 396 U.S. at 417, 90 S.Ct. at 653, 24 L.Ed.2d at 624. (footnotes omitted, emphasis added), citing Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962). Griego remanded a section 174 charge for a new trial, stating, "In the circumstances of this case the jury should be instructed on the tendered defense of no knowledge and told that the defense is not available if the jury finds from all the evidence beyond a reasonable doubt that the defendant had a conscious purpose to avoid learning the source of the heroin." 298 F.2d at 849. The Supreme Court again adopted the Model Penal Code definition of knowledge and approved the language of Griego in Barnes v. United States, 412 U.S. 837, 845 & n.10, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380, 387 (1973).

28

It is true that neither Leary, Turner, nor Barnes involved a jury instruction. However, United States v. Squires, 440 F.2d 859, 863-64 & n.12 (2d Cir. 1971), and United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973), recognize that the Supreme Court's approval of the Model Penal Code definition of knowledge implies approval of an instruction that the requirement of knowledge is satisfied by proof of a "conscious purpose to avoid learning the truth."^[11] The implication seems inevitable, [702] in view of the approval of Griego in Turner and Barnes.

29

"Deliberate ignorance" instructions have been approved in prosecutions under criminal statutes prohibiting "knowing" conduct by the Courts of Appeals of the Second, Sixth, Seventh, and Tenth Circuits.^[12] In many other cases, Courts of Appeals reviewing the sufficiency of evidence have approved the premise that "knowingly" in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it.^[13] These lines of authority [703] appear unbroken. Neither the dissent nor the briefs of either party has cited a case holding that such an instruction is error or that such evidence is not sufficient to establish "knowledge."^[14]

30

There is no reason to reach a different result under the statute involved in this case. Doing so would put this court in direct conflict with Courts of Appeals in two other circuits that have approved "deliberate ignorance" instructions in prosecutions under 21 U.S.C. § 841(a), or its predecessor, 21 U.S.C. § 174.^[15] Nothing is cited from the legislative history of the Drug Control Act indicating that Congress used the term "knowingly" in a sense at odds with prior authority. Rather, Congress is presumed to have known and adopted the "cluster of ideas" attached to such a familiar term of art. Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288, 300 (1952). Congress was aware of Leary and Turner,^[16] and expressed no dissatisfaction with their definition of the term.

31

Appellant's narrow interpretation of "knowingly" is inconsistent with the Drug Control Act's general purpose to deal more effectively "with the growing menace of drug abuse in the United States."^[17] Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband — in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing. See notes 12, 13, and 15.

32

It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant's interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law.

33

It begs the question to assert that a "deliberate ignorance" instruction permits the jury to convict without finding that the accused possessed the knowledge required by the statute. Such an assertion assumes that the statute requires positive knowledge. But the question is the meaning of the term "knowingly" in the statute. If it means positive knowledge, then, of course, [704] nothing less will do. But if "knowingly" includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment, the statute is satisfied by such proof.^[18]

34

It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance.^[19] "A court can properly find wilful blindness only where it can almost be said that the defendant actually knew."^[20] In the language of the instruction in this case, the government must prove, "beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth."^[21]

35

No legitimate interest of an accused is prejudiced by such a standard, and society's interest in a system of criminal law that is enforceable and that imposes sanctions upon all who are equally culpable requires it.

36

The conviction is affirmed.

37

[705] ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).

38

Jewell was convicted and received concurrent sentences on two counts: (1) knowingly or intentionally importing a controlled substance, 21 U.S.C. §§ 952(a), 960(a)(1); (2) knowingly or intentionally possessing, with intent to distribute, a controlled substance, id. § 841(a)(1). We agree with the majority that the jury was not required to find, as to count one, that the defendant knew which controlled substance he possessed. We further agree that the additional state of mind required by count two — intent to distribute the substance — must be specifically proven as an element of a section 841(a)(1) violation.

39

The sole question raised by appellant is whether the following jury instruction constitutes reversible error:

40

The Government has the burden of proving beyond a reasonable doubt, as to Count 2:

41

1. That the defendant knowingly brought the marijuana into the United States and with respect to Count 2 that he knowingly possessed the marijuana as charged.

42

The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

43

 

44

At the outset, it is arguable that the "conscious purpose to avoid learning the truth" instruction is inherently inconsistent with the additional mens rea required for count two — intent to distribute. It is difficult to explain that a defendant can specifically intend to distribute a substance unless he knows that he possesses it.^[1] In any event, we would not approve the conscious purpose instruction in this case, because it falls short of the scienter independently required under both counts.^[2]

45

The majority opinion justifies the conscious purpose jury instruction as an application of the wilful blindness doctrine recognized primarily by English authorities. A classic illustration of this doctrine is the connivance of an innkeeper who deliberately arranges not to go into his back room and thus avoids visual confirmation of the gambling he believes is taking place.^[3] The doctrine is commonly said to apply in deciding whether one who acquires property under suspicious circumstances should be charged with knowledge that it was stolen.^[4]

46

One problem with the wilful blindness doctrine is its bias towards visual means of acquiring knowledge. We may know facts from direct impressions of the other senses or by deduction from circumstantial evidence, and such knowledge is nonetheless "actual." Moreover, visual sense impressions [706] do not consistently provide complete certainty.^[5]

47

Another problem is that the English authorities seem to consider wilful blindness a state of mind distinct from, but equally culpable as, "actual" knowledge.^[6] When a statute specifically requires knowledge as an element of a crime, however, the substitution of some other state of mind cannot be justified even if the court deems that both are equally blameworthy.^[7]

48

Finally, the wilful blindness doctrine is uncertain in scope. There is disagreement as to whether reckless disregard for the existence of a fact constitutes wilful blindness or some lesser degree of culpability.^[8] Some cases have held that a statute's scienter requirement is satisfied by the constructive knowledge imputed to one who simply fails to discharge a duty to inform himself.^[9] There is also the question of whether to use an "objective" test based on the reasonable man, or to consider the defendant's subjective belief as dispositive.^[10]

49

The approach adopted in section 2.02(7) of the Model Penal Code clarifies, and, in important ways restricts,^[11] the English doctrine:

50

When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of [707] its existence, unless he actually believes that it does not exist.

51

 

52

This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that section 2.02(7) is a definition of knowledge, not a substitute for it; as such, it has been cited with approval by the Supreme Court. Turner v. United States, 396 U.S. 398, 416 & n.29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610, 623 (1970); Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 1553, 23 L.Ed.2d 57, 87 (1969).

53

In light of the Model Penal Code's definition, the "conscious purpose" jury instruction is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form "a conscious purpose to avoid learning the truth" unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.

54

The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he "actually believed" there was no controlled substance in the car. The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge — that a reasonable man should have inspected the car and would have discovered what was hidden inside. One recent decision reversed a jury instruction for this very deficiency — failure to balance a conscious purpose instruction with a warning that the defendant could not be convicted if he actually believed to the contrary. United States v. Bright, 517 F.2d 584, 586-89 (2d Cir. 1975).

55

Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or "not actually aware" that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge.^[12] A proper jury instruction based on the Model Penal Code would be presented as a way of defining knowledge, and not as an alternative to it.

56

The majority opinion cites three cases, all in the Second Circuit, which approve conscious purpose instructions in prosecutions under the same statute as Jewell was charged. In two of these cases the jury instruction included one of the elements of the Model Penal Code provision which was omitted in the instant case.^[13] Of course, jury instructions should be considered in context and not subjected to unduly technical analysis. Yet we remain convinced that the instructions given in this case were erroneous; they could have permitted the jury to convict Jewell without being certain beyond a reasonable doubt that he possessed the mens rea required for knowing possession or importation under 21 U.S.C. §§ 841(a) & 960(a).

57

We do not agree with the majority that we can only reverse if the conscious purpose instruction constituted "plain error." Before the instruction was given, the defense [708] counsel objected "strenuously" on the basis that the jury could convict Jewell for failure to make an adequate attempt to check out the car. When the trial judge rejected this argument, the defense counsel further requested that he "add an addendum" to the charge so the jury would understand it properly. The trial court rejected this suggestion as well, and cut off further argument, saying "The record may show your objection."

58

Although the defense counsel did not fully anticipate our analysis of the conscious purpose instruction, he came close. (1) He gave a reason for his objection — that the instruction would allow conviction without proof of the scienter element. (2) He further suggested adding "an addendum" to warn the jury against misinterpreting the instruction. We believe these objections were sufficient to require reversal on appeal unless the deficiencies in the instruction were harmless error.^[14]

59

We do not question the sufficiency of the evidence in this case to support conviction by a properly-instructed jury.^[15] As with all states of mind, knowledge must normally be proven by circumstantial evidence. There is evidence which could support a conclusion that Jewell was aware of a high probability that the car contained a controlled substance and that he had no belief to the contrary. However, we cannot say that the evidence was so overwhelming that the erroneous jury instruction was harmless. Accordingly, we would reverse the judgment on this appeal.

60

[1] Appellant testified that a week before the incident in question he sold his car for $100 to obtain funds "to have a good time." He then rented a car for about $100, and he and a friend drove the rented car to Mexico. Appellant and his friend were unable to adequately explain their whereabouts during the period of about 11 hours between the time they left Los Angeles and the time they admitted arriving in Mexico.

61

Their testimony regarding acquisition of the load car follows a pattern common in these cases: they were approached in a Tijuana bar by a stranger who identified himself only by his first name — "Ray." He asked them if they wanted to buy marihuana, and offered to pay them $100 for driving a car north across the border. Appellant accepted the offer and drove the load car back, alone. Appellant's friend drove appellant's rented car back to Los Angeles.

62

Appellant testified that the stranger instructed him to leave the load car at the address on the car registration slip with the keys in the ashtray. The person living at that address testified that he had sold the car a year earlier and had not seen it since. When the Customs agent asked appellant about the secret compartment in the car, appellant did not deny knowledge of its existence, but stated that it was in the car when he got it.

63

There were many discrepancies and inconsistencies in the evidence reflecting upon appellant's credibility. Taking the record as a whole, the jury could have concluded that the evidence established an abortive scheme, concocted and carried out by appellant from the beginning, to acquire a load of marihuana in Mexico and return it to Los Angeles for distribution for profit.

64

[2] Both appellant and his companion testified that the stranger identified as "Ray" offered to sell them marihuana and, when they declined, asked if they wanted to drive a car back to Los Angeles for $100. Appellant's companion "wanted no part of driving the vehicle." He testified, "It didn't sound right to me." Appellant accepted the offer. The Drug Enforcement Administration agent testified that appellant stated "he thought there was probably something wrong and something illegal in the vehicle, but that he checked it over. He looked in the glove box and under the front seat and in the trunk, prior to driving it. He didn't find anything, and, therefore, he assumed that the people at the border wouldn't find anything either" (emphasis added). Appellant was asked at trial whether he had seen the special compartment when he opened the trunk. He responded, "Well, you know, I saw a void there, but I didn't know what it was." He testified that he did not investigate further. The Customs agent testified that when he opened the trunk and saw the partition he asked appellant "when he had that put in." Appellant told the agent "that it was in the car when he got it."

65

The jury would have been justified in accepting all of the testimony as true and concluding that although appellant was aware of facts making it virtually certain that the secret compartment concealed marihuana, he deliberately refrained from acquiring positive knowledge of the fact.

66

[3] The court said:

67

An act is done knowingly if it's done voluntarily and intentionally and not because of mistake or accident or other innocent reason.

68

The purpose of adding the word "knowingly" was to insure that no one would be convicted for acts done because of an omission or failure to act due to mistake or accident or other innocent reason.

69

[4] R. Perkins, Criminal Law 776 (2d ed. 1969).

70

[5] Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294, 298 (1954). Later in his discussion Mr. Edwards writes, "[N]o real doubt has been cast on the proposition that connivance is as culpable as actual knowledge. We have already seen the diverse fashions in which this state of mind has been defined, ranging from the original expression `wilful shutting of the eyes' and its closest counterpart `wilful blindness,' to the less forceful but equally satisfactory formulae `purposely abstaining from ascertaining' and `wilfully abstaining from knowing.'" Id. at 302.

71

[6] G. Williams, Criminal Law: The General Part, § 57 at 157 (2d ed. 1961).

72

[7] Id. at 159. Mr. Williams' concluding paragraph reads in its entirety:

73

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.

74

[8] Model Penal Code 27 (Prop. Official Draft 1962).

75

[9] Model Penal Code 129-30 (Tent. Draft No. 4, 1955). Comment 9 reads in full as follows:

76

Paragraph (7) deals with the situation British commentators have denominated "wilful blindness" or "connivance," the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist. See Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294 (1954); [G. Williams, Criminal Law: The General Part § 41 (1st ed. 1953)]. Whether such cases should be viewed as instances of acting recklessly or knowingly presents a subtle but important question.

77

The draft proposes that the case be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant's conduct, necessarily a matter of the future at the time of acting. The position reflects what we believe to be the normal policy of criminal enactments which rest liability on acting "knowingly," as is so commonly done. The inference of "knowledge" of an existing fact is usually drawn from proof of notice of substantial probability of its existence, unless the defendant establishes an honest, contrary belief. The draft solidifies this usual result and clarifies the terms in which the issue is submitted to the jury.

78

[10] See also United States v. Freed, 401 U.S. 601, 613 n.5, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356, 364 (1971) (Brennan, J., concurring).

79

[11] Jacobs involved convictions under 18 U.S.C. §§ 2314 and 2315 prohibiting dealings in securities "knowing the same to have been stolen." The charge read:

80

The third element of the offense is that the defendant knew that the Treasury Bills had been stolen. Knowledge is not something that you can see with the eye or touch with the finger. It is seldom possible to prove it by direct evidence. The government relies largely on circumstantial evidence in this case to establish knowledge.

81

In deciding whether a particular defendant under consideration by you knew the bills were stolen you should consider all the circumstances such as how the defendant handled the transaction, how he conducted himself. Do his actions betray guilty knowledge that he was dealing with stolen securities or are his actions those of a duped, innocent man?

82

Guilty knowledge cannot be established by demonstrating merely negligence or even foolishness on the part of a defendant. However, it is not necessary that the government prove to a certainty that a defendant knew the bills were stolen. Such knowledge is established if the defendant was aware of a high probability that the bills were stolen, unless the defendant actually believed that the bills were not stolen.

83

Knowledge that the goods have been stolen may be inferred from circumstances that would convince a man of ordinary intelligence that this is the fact. The element of knowledge may be satisfied by proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him.

84

Thus if you find that a defendant acted with reckless disregard of whether the bills were stolen and with a conscious purpose to avoid learning the truth the requirement of knowledge would be satisfied, unless the defendant actually believed they were not stolen.

85

Furthermore, I instruct you that proof of a sale and purchase at a substantially discounted price permits an inference that the parties to the transaction knew of the illicit character of the items sold.

86

You should scrutinize the entire conduct of the defendant at or near the time the offenses are alleged to have been committed.

87

475 F.2d at 287 n.37 (emphasis added).

88

[12] United States v. Dozier, 522 F.2d 224, 226 (2d Cir. 1975) (21 U.S.C. § 841(a)(1); upheld the following jury instruction: "If you find from all the evidence beyond a reasonable doubt either that the defendant knew that she was helping in a cocaine transaction, or that she had a conscious purpose to avoid finding out the identity of the substance so as to close her eyes to the facts, you could find sufficient evidence to find her guilty beyond a reasonable doubt"); United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974) (21 U.S.C. §§ 952(a) & 841(a)(1)); United States v. Joly, 493 F.2d 672 (2d Cir. 1974) (21 U.S.C. §§ 841(a)(1), 952(a), 955, 960(a)(1) & (2); United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973) (18 U.S.C. § 922(a)(6): firearms); United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973) (conspiracy to violate 18 U.S.C. §§ 2314 & 2315: stolen securities); United States v. Grizaffi, 471 F.2d 69, 75 (7th Cir. 1972) (18 U.S.C. §§ 371, 1008, 1341; LaBuy Instruction No. 4.05, 33 F.R.D. 553 (1965), approved); United States v. Sarantos, 455 F.2d 877, 880-81 (2d Cir. 1972) (18 U.S.C. §§ 371, 1001, 1546); United States v. Squires, 440 F.2d 859, 864 & n.12 (2d Cir. 1971) (18 U.S.C. § 922(a)(6); Model Penal Code followed — jury instruction rejected because it should have included "deliberate ignorance"); United States v. Llanes, 374 F.2d 712, 716 (2d Cir. 1967) (conviction under former 21 U.S.C. §§ 173 & 174; instructions properly refused "since they failed to include the element of `a conscious purpose to avoid learning the source of the heroin'"); United States v. Joyce, 499 F.2d 9, 23 (7th Cir. 1974) (18 U.S.C. § 1341; LaBuy Instruction No. 4.05 approved); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) (reversal of conviction under former 21 U.S.C. § 174; jury should be given "deliberate ignorance" instruction).

89

United States v. Bright, 517 F.2d 584, 586-88 (2d Cir. 1975), reversed a conviction because the trial court refused to add to a "deliberate ignorance" instruction the qualification "unless he actually believes it did not exist," found in Model Penal Code § 2.02(7). This question was not raised below, or in this court, perhaps because the evidence to support it was lacking. See note 2 supra. See also United States v. Dozier, 522 F.2d 224, 228 (2d Cir. 1975) (on petition for rehearing).

90

[13] United States v. De Garces, 518 F.2d 1156, 1160 (2d Cir. 1975) (21 U.S.C. §§ 952(a), 960(a)(1)); United States v. Frank, 494 F.2d 145, 152-53 (2d Cir. 1974) (transporting stolen money, 18 U.S.C. §§ 371, 1341-1343, 2314); United States v. Brawer, 482 F.2d 117, 126-27 (2d Cir. 1973) (18 U.S.C. §§ 2, 371 & 2314, transporting stolen securities); United States v. Egenberg, 441 F.2d 441, 444 (2d Cir. 1971) (false statements, 18 U.S.C. § 1001, 26 U.S.C. § 7206(2)); United States v. Abrams, 427 F.2d 86, 91 (2d Cir. 1970) (false statements, 18 U.S.C. §§ 2, 1001); United States v. Sheiner, 410 F.2d 337, 340-41 (2d Cir. 1969) (18 U.S.C. § 331 and others); Verdugo v. United States, 402 F.2d 599, 604 (9th Cir. 1968) (former 21 U.S.C. § 174); see United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975) (specific intent in 21 U.S.C. § 841(a)(1)); United States v. Yasser, 114 F.2d 558, 560 (3d Cir. 1940) (predecessor of 18 U.S.C. § 152; dicta); cf. United States v. Cooperative Grain & Supply Co., 476 F.2d 47, 59 (8th Cir. 1973) (dicta that guilty avoidance of knowledge can supplant positive knowledge under 18 U.S.C. § 287); Rachmil v. United States, 43 F.2d 878, 881 (9th Cir. 1930) (per curiam) (dicta regarding predecessor to 18 U.S.C. § 152).

91

[14] The cases cited in appellant's briefs hold only that knowledge that the substance possessed is a narcotic or controlled substance was an element of the particular offenses involved. None holds that such knowledge cannot be established by proof that the possessor was aware of facts making it highly probable that the substance was a narcotic or controlled substance and lacked positive knowledge only because he consciously avoided it.

92

[15] United States v. Dozier, 522 F.2d 224, 226 (2d Cir. 1975); United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974); United States v. Joly, 493 F.2d 672 (2d Cir. 1974); United States v. Llanes, 374 F.2d 712, 716 (2d Cir. 1967) (under former 21 U.S.C. §§ 173 & 174, instruction properly refused because it did not include "deliberate ignorance"); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) (on remand under former 21 U.S.C. § 174, jury should be instructed on "deliberate ignorance"); see United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975) (under 21 U.S.C. § 841(a)(1) sufficiency of evidence of specific intent to possess and distribute LSD).

93

[16] See, e. g., Drug Abuse Control Amendments — 1970, Hearings before the Subcomm. on Public Health & Welfare of the House Comm. on Interstate & Foreign Commerce, 91st Cong., 2d Sess., at 697, 705-06 (1970); 116 Cong.Rec. 33661 (1970) (col. 2).

94

[17] See, e. g., H.R.No.91-1444, Sept. 10, 1970, 91st Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News 4566, 4567 (1970).

95

[18] The argument that a "deliberate ignorance" instruction relieves the jury of finding knowledge was rejected in United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974).

96

[19] As Judge Feinberg said in United States v. Sarantos, 455 F.2d 877, 881 (2d Cir. 1972), the purpose of the "deliberate ignorance" instruction is "to prevent an individual . . . from circumventing criminal sanctions merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct."

97

[20] G. Williams, supra note 6, at 159.

98

[21] We do not suggest that the instruction given in this case was a model in all respects. The jury should have been instructed more directly (1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, (2) unless he actually believes it does not exist.

99

The deficiency in the instruction does not require reversal, however. Appellant did not object to the instruction on this ground either below or in this court. Since both of the elements referred to are implied in the instruction, the deficiency in the instructions is not so substantial as to justify reversal for plain error. See United States v. Dozier, 522 F.2d 224, 228 (2d Cir. 1975) (on petition for rehearing).

100

Appellant did not argue below or in this court that the instruction did not require an awareness of a high probability that the controlled substance was present. An objection on this ground would have little merit. The instruction given (that "[appellant's] ignorance in that regard was solely and entirely the result of his having made a conscious purpose to disregard the nature of that which was in the vehicle") suggests that the accused must be aware of facts making the presence of the contraband all but certain. Only if the accused were aware of such facts could his ignorance of the presence of the marihuana be "solely and entirely" the result of his conscious purpose to avoid the truth. Under this instruction, neither reckless disregard nor suspicion followed by failure to make full inquiry would be enough.

101

Nor did appellant suggest in the court below or in this court that the instruction given was deficient because it failed to state specifically (as we think would have been preferable) that appellant could not be convicted if he actually believed there was no controlled substance in the car. The reason appellant does not raise this objection may be, again, that the instruction given includes the limitation by reasonable inference. If appellant were ignorant of the presence of contraband solely and entirely because he "made a conscious purpose to disregard the nature of that which was in the vehicle," as the instruction given requires, it would hardly be a realistic possibility that he might at the same time have entertained a good faith belief that there was no contraband present. Nor did the instruction permit the jury to convict on an "objective" rather than "subjective" theory of the knowledge requirement; that is, on the theory that appellant was chargeable with knowledge because a reasonable man would have inspected the car more thoroughly and discovered the contraband inside. See United States v. Bright, 517 F.2d 584, 587-88 (2d Cir. 1975). The negligence theory was advanced by the government but was rejected by the trial court. The instruction given by the trial court required the jury to find that appellant had a deliberate purpose to avoid the truth. Moreover, the jury was expressly informed that an act was not done "knowingly" within the meaning of the statute if it was done by "mistake or accident or other innocent purpose."

102

In the circumstances of this case, it was not plain error requiring reversal for the instruction to fail to define knowledge explicitly in terms of an awareness of a high probability of the presence of the contraband and the absence of a belief that the contraband was not present.

103

[1] "Want of knowledge . . . may disprove the existence of a specific intent. Thus one cannot intend to steal property which he believes to be his own however careless he may have been in coming to that belief." R. Perkins, Criminal Law 778 (2d ed. 1969) (footnote omitted).

104

[2] The challenged instruction was given for count two only, but it would seem to be applicable as well to the state of mind required for count one. A jury would be easily confused by the apparent difference in standards, at least absent explicit instructions on the point. Therefore we think it would be inappropriate to invoke the concurrent sentence rule to affirm Jewell's conviction on the basis of count one.

105

[3] See, e. g., Bosley v. Davies, [1875] L.R. 1 Q.B. 84.

106

[4] See 2 R. Anderson, Wharton's Criminal Law and Procedure § 568 (1957 & Supp.1975). This situation — use of circumstantial evidence to prove a contemporaneous state of mind — should be distinguished from the use of one fact to support the inference of a previous event. See McAbee v. United States, 434 F.2d 361, 362-63 (9th Cir. 1970) (permissive inference that possessor of property recently stolen in another state was the thief and had transported it in interstate commerce).

107

[5] See United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149, 1158 (1967).

108

[6] See G. Williams, Criminal Law: The General Part § 57, at 157 (2d ed. 1961) ("To the requirement of actual knowledge there is one strictly limited exception."); Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294, 302 (1954) (wilful blindness is "as culpable as actual knowledge).

109

The use of the term "actual knowledge" in this manner is misleading in suggesting the possibility of achieving a state of total certainty, and that only such knowledge is "actual." In fact, we commonly act on less than complete information and in this world may never know one-hundred-percent certainty.

110

`Absolute knowledge can be had of very few things,' said the Massachusetts court, and the philosopher might add `if any.' For most practical purposes `knowledge' `is not confined to what we have personally observed or to what we have evolved by our own cognitive faculties.'

111

R. Perkins, supra note 1, at 775, quoting Story v. Buffam, 90 Mass. 35, 38 (8 Allen) (1864), and State v. Ransberger, 106 Mo. 135, 140, 17 S.W. 290, 292 (1891).

112

[7] This case does not present the question of how far Congress could reduce the requirement of a mens rea for possession of drugs. The statutes use the terms "knowingly or intentionally." It is true that a strict interpretation of the scienter requirement may produce fewer convictions in combating "the growing menace of drug abuse." But the Supreme Court has cautioned that "the purpose of every statute would be `obstructed' by requiring a finding of intent, if we assume that it had a purpose to convict without it." Morissette v. United States, 342 U.S. 246, 259, 72 S.Ct. 240, 247, 96 L.Ed. 288, 298 (1952). Here it is clear that Congress intended to require knowledge as an element of these offenses.

113

The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute.

114

Id. at 263, 72 S.Ct. at 249, 96 L.Ed. at 300.

115

[8] Compare G. Williams, supra note 6, at 158-59, with Edwards, supra note 6, at 303-06. A "reckless disregard" instruction was approved in one case relied upon by the majority. See United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973), cert. denied, 415 U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480 (1974).

116

[9] E. g., Spurr v. United States, 174 U.S. 728, 735, 19 S.Ct. 812, 815, 43 L.Ed. 1150, 1153 (1899). These cases generally involve regulatory statutes, the violation of which is malum prohibitum. Riss & Co. v. United States, 262 F.2d 245, 248-51 (8th Cir. 1958). Yet one case relied upon by the majority regarded Spurr as "comparable" to the former narcotics importation statute. See Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962).

117

[10] See R. Perkins, supra note 1, at 778 & n.77; R. Anderson, supra note 4, at 281-82 & nn.6-8.

118

[11] Professor Perkins observes that section 2.02(7) of the Model Penal Code "covers must less than `knowledge' as it has been interpreted as a mens-rea requirement in the common law." With regard to the receipt of stolen property, he criticizes the Code for not imposing liability in "the case of the man who has no belief one way or the other, but has been put on notice that it may be stolen and `shuts his eyes' in order not to find out." R. Perkins, supra note 1, at 799.

119

[12] See note 7 supra.

120

[13] See United States v. Olivares-Vega, 495 F.2d 827, 830 nn.10 & 11 (2d Cir.), cert. denied, 419 U.S. 1020, 95 S.Ct. 494, 42 L.Ed.2d 293 (1974) (instruction required acquittal if defendant believed he did not possess controlled substance); United States v. Joly, 493 F.2d 672, 674 (2d Cir. 1974) (conscious purpose to avoid enlightenment when he "had every reason to believe" he possessed a controlled substance). The third case cited by the majority is discussed in note 14 infra.

121

[14] Thus the instant case is distinguishable from United States v. Dozier, 522 F.2d 224 (2d Cir. 1975). There counsel made no objection to the jury charge, and the Second Circuit held the conscious purpose instruction was not so unbalanced as to constitute plain error. Id. at 228.

122

[15] Thus we have no disagreement with the sufficiency-of-evidence cases cited in note 13 of the majority opinion. However, they are not in point for the instant appeal.

1332 Md. 571 (1993) 2632 A.2d 797 3

RAYMOND LENNARD GARNETT
v.
STATE OF MARYLAND.

4No. 3 September Term, 1993. 5

Court of Appeals of Maryland.

6November 12, 1993. 7

 

8

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender) both on brief, Baltimore, for appellant.

9

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.), both on brief, Baltimore, for appellee.

10

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

11

MURPHY, Chief Judge.

12

Maryland's "statutory rape" law prohibiting sexual intercourse with an underage person is codified in Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463, which reads in full:

13

"Second degree rape.

14

(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

15

(1) By force or threat of force against the will and without the consent of the other person; or

16

(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or

17

(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.

18

(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years."

19

 

20

Subsection (a)(3) represents the current version of a statutory provision dating back to the first comprehensive codification of the criminal law by the Legislature in 1809.^[1] Now we consider whether under the present statute, the State must prove that a defendant knew the complaining witness was younger than 14 and, in a related question, whether it was error at trial to exclude evidence that he had been told, and believed, that she was 16 years old.

21 22 23

 

24

Raymond Lennard Garnett is a young retarded man. At the time of the incident in question he was 20 years old. He has an I.Q. of 52. His guidance counselor from the Montgomery County public school system, Cynthia Parker, described him as a mildly retarded person who read on the third-grade level, did arithmetic on the 5th-grade level, and interacted with others socially at school at the level of someone 11 or 12 years of age. Ms. Parker added that Raymond attended special education classes and for at least one period of time was educated at home when he was afraid to return to school due to his classmates' taunting. Because he could not understand the duties of the jobs given him, he failed to complete vocational assignments; he sometimes lost his way to work. As Raymond was unable to pass any of the State's functional tests required for graduation, he received only a certificate of attendance rather than a high-school diploma.

25

In November or December 1990, a friend introduced Raymond to Erica Frazier, then aged 13; the two subsequently talked occasionally by telephone. On February 28, 1991, Raymond, apparently wishing to call for a ride home, approached the girl's house at about nine o'clock in the evening. Erica opened her bedroom window, through which Raymond entered; he testified that "she just told me to get a ladder and climb up her window." The two talked, and later engaged in sexual intercourse. Raymond left at about 4:30 a.m. the following morning. On November 19, 1991, Erica gave birth to a baby, of which Raymond is the biological father.

26

Raymond was tried before the Circuit Court for Montgomery County (Miller, J.) on one count of second degree rape under § 463(a)(3) proscribing sexual intercourse between a person under 14 and another at least four years older than the complainant. At trial, the defense twice proffered evidence to the effect that Erica herself and her friends had previously told Raymond that she was 16 years old, and that he had acted with that belief. The trial court excluded such evidence as immaterial, explaining:

27

"Under 463, the only two requirements as relate to this case are that there was vaginal intercourse, [and] that ... Ms. Frazier was under 14 years of age and that ... Mr. Garnett was at least four years older than she.

28

"In the Court's opinion, consent is no defense to this charge. The victim's representation as to her age and the defendant's belief, if it existed, that she was not under age, what amounts to what otherwise might be termed a good faith defense, is in fact no defense to what amount[s] to statutory rape.

29

"It is in the Court's opinion a strict liability offense."

30

 

31

The court found Raymond guilty. It sentenced him to a term of five years in prison, suspended the sentence and imposed five years of probation, and ordered that he pay restitution to Erica and the Frazier family. Raymond noted an appeal; we granted certiorari prior to intermediate appellate review by the Court of Special Appeals to consider the important issue presented in the case, 329 Md. 601, 620 A.2d 940.

32 33 34

 

35

In 1975 the Legislative Council of the General Assembly established the Special Committee on Rape and Related Offenses, which proposed a complete revision of Maryland law pertaining to rape and other sex crimes. See generally J. William Pitcher, Rape and Other Sexual Offense Law Reform in Maryland 1976-1977, 7 U.Balt.L.Rev. 151 (1977). Based on the Committee's work, Senate Bill 358 was introduced, amended, and enacted on May 17, 1976, as ch. 573 of the Acts of 1976. In part, it repealed the common law crime of rape, the former statutory prohibition of carnal knowledge of underage girls, and other related crimes and replaced them with the current array of criminal laws delineating two degrees of rape and four degrees of sexual offenses. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-5 and Code, Art. 27, §§ 462-464C; see also Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure 65-66, 68-81 (1983).

36

The new legislation reformulated the former statutory rape law by introducing the element of a four-year age difference between the accused and the underage complainant. Report of the Senate Judicial Proceedings Committee, at 2. As originally enacted by ch. 573 of the Acts of 1976, sexual intercourse with a person under 14 by an actor more than four years older was classified as rape in the first degree, and carried a maximum penalty of life imprisonment. The Legislature, by ch. 292 of the Acts of 1977, reduced the crime to rape in the second degree carrying a maximum sentence of 20 years in prison. These reforms of 1976 and 1977 created the law now embodied in § 463(a)(3).

37

Section 463(a)(3) does not expressly set forth a requirement that the accused have acted with a criminal state of mind, or mens rea. The State insists that the statute, by design, defines a strict liability offense, and that its essential elements were met in the instant case when Raymond, age 20, engaged in vaginal intercourse with Erica, a girl under 14 and more than 4 years his junior. Raymond replies that the criminal law exists to assess and punish morally culpable behavior. He says such culpability was absent here. He asks us either to engraft onto subsection (a)(3) an implicit mens rea requirement, or to recognize an affirmative defense of reasonable mistake as to the complainant's age. Raymond argues that it is unjust, under the circumstances of this case which led him to think his conduct lawful, to brand him a felon and rapist.

38 39 40

 

41

Raymond asserts that the events of this case were inconsistent with the criminal sexual exploitation of a minor by an adult. As earlier observed, Raymond entered Erica's bedroom at the girl's invitation; she directed him to use a ladder to reach her window. They engaged voluntarily in sexual intercourse. They remained together in the room for more than seven hours before Raymond departed at dawn. With an I.Q. of 52, Raymond functioned at approximately the same level as the 13-year-old Erica; he was mentally an adolescent in an adult's body. Arguably, had Raymond's chronological age, 20, matched his socio-intellectual age, about 12, he and Erica would have fallen well within the four-year age difference obviating a violation of the statute, and Raymond would not have been charged with any crime at all.

42

The precise legal issue here rests on Raymond's unsuccessful efforts to introduce into evidence testimony that Erica and her friends had told him she was 16 years old, the age of consent to sexual relations, and that he believed them. Thus the trial court did not permit him to raise a defense of reasonable mistake of Erica's age, by which defense Raymond would have asserted that he acted innocently without a criminal design. At common law, a crime occurred only upon the concurrence of an individual's act and his guilty state of mind. Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041 (1988). In this regard, it is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence. Writing for the United States Supreme Court, Justice Robert Jackson observed:

43

"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.

44

* * * * * *

45

"Crime as a compound concept, generally constituted only from a concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil."

46

 

47

Morissette v. United States, 342 U.S. 246, 250-252, 72 S.Ct. 240, 243-244, 96 L.Ed. 288 (1952).

48

To be sure, legislative bodies since the mid-19th century have created strict liability criminal offenses requiring no mens rea. Almost all such statutes responded to the demands of public health and welfare arising from the complexities of society after the Industrial Revolution. Typically misdemeanors involving only fines or other light penalties, these strict liability laws regulated food, milk, liquor, medicines and drugs, securities, motor vehicles and traffic, the labeling of goods for sale, and the like. See Dawkins, supra, 313 Md. at 644-645, 547 A.2d 1041; see generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 340-373 (1989) (suggesting, however, that strict liability doctrine in the United States in the late 19th century was motivated largely by moralistic fervor, such as found in the prohibitionist movement); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 242-243 (2d ed. 1986); 1 Wharton's Criminal Law 100-111 (Charles E. Torcia ed., 14th ed. 1978). Statutory rape, carrying the stigma of felony as well as a potential sentence of 20 years in prison, contrasts markedly with the other strict liability regulatory offenses and their light penalties.

49

Modern scholars generally reject the concept of strict criminal liability. Professors LaFave and Scott summarize the consensus that punishing conduct without reference to the actor's state of mind fails to reach the desired end and is unjust:

50

"`It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventive or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.'"

51

 

52

LaFave & Scott, supra, at 248, quoting Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 109.

53

Dean Singer has articulated other weaknesses of strict criminal liability theory: 1) extensive government civil regulations and strict liability in tort achieve the same deterrent effect; 2) the judicial efficiency of dispatching minor offenses without an inquiry into mens rea is attained equally by decriminalizing them, and hearing such cases in a regulatory or administrative forum; 3) the small penalties imposed for most strict liability offenses oblige the public to engage in a pernicious game of distinguishing "real" crime from some lesser form of crime; 4) some strict liability laws may result from careless drafting; and 5) strict liability dilutes the moral force that the criminal law has historically carried. Singer, supra, at 389-397, 403-404. The author concludes that "the predicate for all criminal liability is blameworthiness; it is the social stigma which a finding of guilt carries that distinguishes the criminal [penalty] from all other sanctions. If the predicate is removed, the criminal law is set adrift." Id. at 404-405.

54

Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently, i.e., with some degree of mens rea. Model Penal Code § 2.02 (Official Draft and Revised Comments 1980). The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. Id. at § 2.04. The Model Penal Code generally recognizes strict liability for offenses deemed "violations," defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and not giving rise to any legal disability. Id. at §§ 1.04, 2.05.^[2]

55

The commentators similarly disapprove of statutory rape as a strict liability crime. In addition to the arguments discussed above, they observe that statutory rape prosecutions often proceed even when the defendant's judgment as to the age of the complainant is warranted by her appearance, her sexual sophistication, her verbal misrepresentations, and the defendant's careful attempts to ascertain her true age. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 106 (1965). Voluntary intercourse with a sexually mature teen-ager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct with children. Id. at 119-122.^[3] See also Richard A. Tonry, Comment, Statutory Rape: A Critique, 26 La.L.Rev. 105 (1965); Michael McGillicuddy, Note, Criminal Law: Mistake of Age as Defense to Statutory Rape, 18 U.Fla.L.Rev. 699 (1966); Dennis L. Pieragostini, Note, Reasonable Mistake as to Age — a Defense to Statutory Rape under the New Penal Code, 2 Conn.L.Rev. 433 (1969) (statute since superseded); Kelly Vance, Note, State v. Elton: The Failure to Recognize a Defense to Statutory Rape, 1983 Utah L.Rev. 437 (case subsequently reversed upon reconsideration); Benjamin L. Reiss, Note, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377 (1992). But see Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex.L.Rev. 387, 401-413 (1984).

56

Two sub-parts of the rationale underlying strict criminal liability require further analysis at this point. Statutory rape laws are often justified on the "lesser legal wrong" theory or the "moral wrong" theory; by such reasoning, the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser crime, fornication, or for having violated moral teachings that prohibit sex outside of marriage. See LaFave & Scott, supra, at 410-410; Myers, supra, at 127-129. Maryland has no law against fornication. It is not a crime in this state. Moreover, the criminalization of an act, performed without a guilty mind, deemed immoral by some members of the community rests uneasily on subjective and shifting norms. "[D]etermining precisely what the `community ethic' actually is [is] not an easy task in a heterogeneous society in which our public pronouncements about morality often are not synonymous with our private conduct." LaFave & Scott, supra, at 411. The drafters of the Model Penal Code remarked:

57

"[T]he actor who reasonably believes that his partner is above that age [of consent] lacks culpability with respect to the factor deemed critical to liability. Punishing him anyway simply because his intended conduct would have been immoral under the facts as he supposed them to be postulates a relation between criminality and immorality that is inaccurate on both descriptive and normative grounds. The penal law does not try to enforce all aspects of community morality, and any thoroughgoing attempt to do so would extend the prospect of criminal sanctions far into the sphere of individual liberty and create a regime too demanding for all save the best among us."

58

 

59

Id., Comment to § 213.6, at 415. We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case.

60 61 62

 

63

The legislatures of 17 states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage persons. In Kentucky, the accused may prove in exculpation that he did not know the facts or conditions relevant to the complainant's age. Ky. Rev. Stat. Ann. § 510.030 (1992). In Washington, the defendant may assert that he reasonably believed the complainant to be of a certain age based on the alleged victim's own declarations. Wash. Rev. Code Ann. § 9A.44.030 (1988, 1993 Cum.Supp.) In some states, the defense is available in instances where the complainant's age rises above a statutorily prescribed level, but is not available when the complainant falls below the defining age. E.g. Pa. Cons. Stat. Ann. tit. 18, § 3102 (1983) (defining critical age at 14); W. Va.Code Ann. § 61-8B-12 (1992 Repl.Vol.) (defining critical age at 11, defense subject to a recklessness standard); Or. Rev. Stat.Ann. § 163.325 (1990 Repl.Vol.) (defining critical age at 16).^[4] In other states, the availability of the defense depends on the severity of the sex offense charged to the accused. E.g. Minn. Stat. Ann. §§ 609.344-609.345 (1987, 1993 Cum.Supp.) (defense available for certain charges under third-degree and fourth-degree criminal sexual conduct).^[5]

64

In addition, the highest appellate courts of four states have determined that statutory rape laws by implication required an element of mens rea as to the complainant's age. In the landmark case of People v. Hernandez, 61 Cal.2d 529, 39 Cal. Rptr. 361, 393 P.2d 673 (1964), the California Supreme Court held that, absent a legislative directive to the contrary, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the trial court's refusal to permit the defendant to present evidence of his good faith, reasonable belief that the complaining witness had reached the age of consent. In so doing, the court first questioned the assumption that age alone confers a sophistication sufficient to create legitimate consent to sexual relations: "the sexually experienced 15-year-old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent." Id., 39 Cal. Rptr. at 362, 393 P.2d at 674. The court then rejected the traditional view that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage:

65

"[I]f [the perpetrator] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been mislead, we cannot realistically conclude for such reason alone the intent with which he undertook the act suddenly becomes more heinous.... [T]he courts have uniformly failed to satisfactorily explain the nature of the criminal intent present in the mind of one who in good faith believes he has obtained a lawful consent before engaging in the prohibited act."

66

 

67

Id., 39 Cal. Rptr. at 364, 393 P.2d at 676.

68

The Supreme Court of Alaska has held that a charge of statutory rape is legally unsupportable unless a defense of reasonable mistake of age is allowed. State v. Guest, 583 P.2d 836, 838-839 (Alaska 1978). The Supreme Court of Utah construed the applicable unlawful sexual intercourse statute to mean that a conviction could not result unless the state proved a criminal state of mind as to each element of the offense, including the victim's age. State v. Elton, 680 P.2d 727, 729 (Utah 1984) (Utah Criminal Code since amended to disallow mistake of age as a defense to unlawful sexual intercourse).^[6] The Supreme Court of New Mexico determined that a defendant should have been permitted at trial to present a defense that his partner in consensual sex told him she was 17, not 15, that this had been confirmed to him by others, and that he had acted under that mistaken belief. Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-251 (1990). Two-fifths of the states, therefore, now recognize the defense in cases of statutory sexual offenses.

69 70 71

 

72

We think it sufficiently clear, however, that Maryland's second degree rape statute defines a strict liability offense that does not require the State to prove mens rea; it makes no allowance for a mistake-of-age defense. The plain language of § 463, viewed in its entirety, and the legislative history of its creation lead to this conclusion.

73

It is well settled that in interpreting a statute to ascertain and effectuate its goal, our first recourse is to the words of the statute, giving them their ordinary and natural import. Fairbanks v. McCarter, 330 Md. 39, 46, 622 A.2d 121 (1993); NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764 (1988). While penal statutes are to be strictly construed in favor of the defendant, the construction must ultimately depend upon discerning the intention of the Legislature when it drafted and enacted the law in question. State v. Kennedy, 320 Md. 749, 754-755, 580 A.2d 193 (1990); Davis v. State, 319 Md. 56, 60-61, 570 A.2d 855 (1990). To that end, the Court may appropriately look at the larger context, including external manifestations of the legislative purpose, within which statutory language appears. Fairbanks v. McCarter, supra, 330 Md. at 46, 622 A.2d 121; Dickerson v. State, 324 Md. 163, 170-171, 596 A.2d 648 (1991); Morris v. Prince George's County, 319 Md. 597, 603-604, 573 A.2d 1346 (1990).

74

Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor's knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. First, subsection (a)(3) stands in stark contrast to the provision immediately before it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or helpless persons. In subsection (a)(2), the Legislature expressly provided as an element of the offense that "the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless." Code, § 463(a)(2) (emphasis added). In drafting this subsection, the Legislature showed itself perfectly capable of recognizing and allowing for a defense that obviates criminal intent; if the defendant objectively did not understand that the sex partner was impaired, there is no crime. That it chose not to include similar language in subsection (a)(3) indicates that the Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability. See McAlear v. McAlear, 298 Md. 320, 343-344, 469 A.2d 1256 (1984) (a court must read the language of a statute in relation to all of its provisions in determining legislative intent); Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734 (1980) (same).

75

Second, an examination of the drafting history of § 463 during the 1976 revision of Maryland's sexual offense laws reveals that the statute was viewed as one of strict liability from its inception and throughout the amendment process. As originally proposed, Senate Bill 358 defined as a sexual offense in the first degree a sex act committed with a person less than 14 years old by an actor four or more years older. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-2. The Senate Judicial Proceedings Committee then offered a series of amendments to the bill. Among them, Amendment # 13 reduced the stipulated age of the victim from less than 14 to 12 or less. 1976 Senate Journal, at 1363. Amendment # 16 then added a provision defining a sexual offense in the second degree as a sex act with another "under 14 years of age, which age the person performing the sexual act knows or should know." 1976 Senate Journal, at 1364. These initial amendments suggest that, at the very earliest stages of the bill's life, the Legislature distinguished between some form of strict criminal liability, applicable to offenses where the victim was age 12 or under, and a lesser offense with a mens rea requirement when the victim was between the ages of 12 and 14.

76

Senate Bill 358 in its amended form was passed by the Senate on March 11, 1976. 1976 Senate Journal, at 1566. The House of Delegates' Judiciary Committee, however, then proposed changes of its own. It rejected the Senate amendments, and defined an offense of rape, without a mens rea requirement, for sexual acts performed with someone under the age of 14. See 1976 House Journal, at 3686.^[7] The Senate concurred in the House amendments and S.B. 358 became law. 1976 House Journal, at 3761; 1976 Senate Journal, at 3429; 1976 Acts of Maryland, at 1536. Thus the Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant's age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators.

77

This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. See Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1204-05, 67 L.Ed.2d 437 (1981); Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 760-761 (1980). The majority of states retain statutes which impose strict liability for sexual acts with underage complainants. We observe again, as earlier, that even among those states providing for a mistake-of-age defense in some instances, the defense often is not available where the sex partner is 14 years old or less; the complaining witness in the instant case was only 13. The majority of appellate courts, including the Court of Special Appeals, have held statutory rape to be a strict liability crime. Eggleston v. State, 4 Md. App. 124, 241 A.2d 433 (1968); see the compilation in W.E. Shipley, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966, 1992 Supp.).

78 79 80

 

81

Maryland's second degree rape statute is by nature a creature of legislation. Any new provision introducing an element of mens rea, or permitting a defense of reasonable mistake of age, with respect to the offense of sexual intercourse with a person less than 14, should properly result from an act of the Legislature itself, rather than judicial fiat. Until then, defendants in extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.

82

JUDGMENT AFFIRMED, WITH COSTS.

83

ELDRIDGE, Judge, dissenting:

84

Both the majority opinion and Judge Bell's dissenting opinion view the question in this case to be whether, on the one hand, Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 463(a)(3), is entirely a strict liability statute without any mens rea requirement or, on the other hand, contains the requirement that the defendant knew that the person with whom he or she was having sexual relations was under 14 years of age.

85

The majority takes the position that the statute defines an entirely strict liability offense and has no mens rea requirement whatsoever. The majority indicates that the defendant's "knowledge, belief, or other state of mind" is wholly immaterial. The majority opinion at one point states: "We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case." Nevertheless, according to the majority, it was permissible for the trial judge to have precluded exploration into Raymond's knowledge and comprehension because the offense is entirely one of strict liability.

86

Judge Bell's dissent, however, argues that, under the due process clauses of the Fourteenth Amendment and the Maryland Declaration of Rights, any "defendant may defend on the basis that he was mistaken as to the age of the prosecutrix."

87

In my view, the issue concerning a mens rea requirement in § 463(a)(3) is not limited to a choice between one of the extremes set forth in the majority's and Judge Bell's opinions. I agree with the majority that an ordinary defendant's mistake about the age of his or her sexual partner is not a defense to a prosecution under § 463(a)(3). Furthermore I am not persuaded, at least at the present time, that either the federal or state constitutions require that a defendant's honest belief that the other person was above the age of consent be a defense.^[1] This does not mean, however, that the statute contains no mens rea requirement at all.

88

The legislative history of § 463(a)(3), set forth in the majority opinion, demonstrates that the House of Delegates rejected the Senate's proposed requirement that an older person, having sexual relations with another under 14 years of age, know or should know that the other person was under 14. The House of Delegates' version was ultimately adopted. From this, the majority concludes that the enacted version was "without a mens rea requirement." The majority's conclusion does not necessarily follow. Although the General Assembly rejected one specific knowledge requirement, it did not decree that any and all evidence concerning a defendant's knowledge and comprehension was immaterial.

89

There are pure strict liability offenses where "the purpose of the penalty is to regulate rather than to punish behavior" and where criminal "liability is imposed regardless of the defendant's state of mind," Dawkins v. State, 313 Md. 638, 645, 547 A.2d 1041 (1988). These "offenses commonly involve light fines or penalties," Dawkins, 313 Md. at 644, 547 A.2d at 1044. There are other offenses (also unfortunately often called "strict liability" offenses) where the legislature has dispensed with a knowledge requirement in one respect but has not intended to impose criminal liability regardless of the defendant's state of mind.^[2] Such offenses

90

"do require `fault' ..., in that they `can be interpreted as legislative judgments that persons who intentionally engage in certain activities and occupy some peculiar or distinctive position of control are to be held accountable for the occurrence of certain consequences.'"

91

 

92

W. LaFave & A. Scott, Jr., Substantive Criminal Law, ch. 3, § 3.8(c), at 349 (1986), quoting Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 743 (1960). See also P. Robinson, Criminal Law Defenses, ch. 3, § 108(b), at 535 (1984) ("If reasonable mistake as to the victim's age is disallowed ... [t]here is, . . strict liability with respect to that element") (emphasis added).

93

Neither the statutory language nor the legislative history of § 463(a)(3), or of the other provisions of the 1976 and 1977 sexual offense statutes, indicate that the General Assembly intended § 463(a)(3) to define a pure strict liability offense where criminal liability is imposed regardless of the defendant's mental state. The penalty provision for a violation of § 463(a)(3), namely making the offense a felony punishable by a maximum of 20 years imprisonment (§ 463(b)), is strong evidence that the General Assembly did not intend to create a pure strict liability offense.

94

In the typical situation involving an older person's engaging in consensual sexual activities with a teenager below the age of consent, and the scenario which the General Assembly likely contemplated when it enacted §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2), and 464C(a)(3), the defendant knows and intends that he or she is engaging in sexual activity with a young person. In addition, the defendant knows that the activity is regarded as immoral and/or improper by large segments of society. Moreover, the defendant is aware that "consent" by persons who are too young is ineffective. Although in a particular case the defendant may honestly but mistakenly believe, because of representations or appearances, that the other person is above the age of consent, the ordinary defendant in such case is or ought to be aware that there is a risk that the young person is not above the age of consent. As the majority opinion points out, "the traditional view [is] that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage...." It seems to me that the above-mentioned knowledge factors, and particularly the mental ability to appreciate that one is taking a risk, constitute the mens rea of the offenses defined by §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2) and 464C(a)(3). In enacting these provisions, the General Assembly assumed that a defendant is able to appreciate the risk involved by intentionally and knowingly engaging in sexual activities with a young person. There is no indication that the General Assembly intended that criminal liability attach to one who, because of his or her mental impairment, was unable to appreciate that risk.

95

It is unreasonable to assume that the Legislature intended for one to be convicted under § 463(a)(3), or under any of the other statutes proscribing sexual activity with underage persons, regardless of his or her mental state. Suppose, for example, that Raymond Garnett had not had an I.Q. of 52, but rather, had been more severely mentally retarded as was the young woman involved in Wentzel v. Montgomery Gen. Hosp., 293 Md. 685, 447 A.2d 1244, cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983). The mentally retarded person in Wentzel had an I.Q. of 25-30, was physiologically capable of bearing a child, but was unable to comprehend the act of sexual intercourse, or even to understand the difference between the sexes. If someone so disabled, having reached Raymond's chronological age, then had "consensual" sexual intercourse with a person younger than fourteen years of age, I do not believe that he or she would have violated Art. 27, § 463(a)(3). Under the view that §§ 463(a)(3), 464A(a)(3), 464B(a)(3), etc., define pure strict liability offenses without any regard for the defendant's mental state, presumably a 20 year old, who passes out because of drinking too many alcoholic beverages, would be guilty of a sexual offense if a 13 year old engages in various sexual activities with the 20 year old while the latter is unconscious. I cannot imagine that the General Assembly intended any such result.

96

An impaired mental condition may show the absence of mens rea, depending upon the circumstances. See, e.g., Simmons v. State, 313 Md. 33, 39 n. 3, 542 A.2d 1258, 1261 n. 3 (1988); Hoey v. State, 311 Md. 473, 494-495, 536 A.2d 622 (1988). In light of the defendant Garnett's mental retardation, and its effect upon his knowledge and comprehension, he may or may not have had the requisite mens rea. As previously mentioned, the majority opinion itself acknowledges that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend standards of sexual morality. The problem in this case is that the trial judge's view of the statute, which the majority adopts, precluded an exploration into the matter.

97

The majority points out that the trial court would not allow testimony that Erica and her friends had told the defendant that she was 16 years old. The trial court, however, went further. The court would not allow the defendant to testify concerning his knowledge. More importantly, the trial judge took the position that the offense proscribed by § 463(a)(3) is "a strict liability offense" and that the only requirements for conviction were that "the defendant had sexual intercourse with Erica Frazier, that at that time she was 13 years of age, [and] at that time the defendant was more than 4 years older than she. These are the only requirements that the State need prove beyond a reasonable doubt." The trial court's position that the offense lacked any mens rea requirement, and that the defendant's mental state was wholly immaterial, was, in my view, erroneous.

98

I would reverse and remand for a new trial.

99

ROBERT M. BELL, Judge, dissenting.

100

"It may be possible to conceive of legislation ... so flagrantly in conflict with natural right, that the courts may set it aside as unwarranted, though no clause of the constitution can be found prohibiting it. But the cases must be rare indeed; and whenever they do occur the interposition of the judicial veto will rest upon such foundations of necessity that there can be little or no room for hesitation."

101

 

102

Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 368 (1989), quoting State v. Clottu, 33 Ind. 409, 410-11 (1870).

103

I do not dispute that the legislative history of Maryland Code (1957, 1992 Repl.Vol.), Art. 27, section 463 may be read to support the majority's interpretation that subsection (a)(3)^[1] was intended to be a strict liability statute. See majority opinion at 585. Nor do I disagree that it is in the public interest to protect the sexually naive child from the adverse physical, emotional, or psychological effects of sexual relations. I do not believe, however, that the General Assembly, in every case, whatever the nature of the crime and no matter how harsh the potential penalty, can subject a defendant to strict criminal liability. To hold, as a matter of law, that section 463(a)(3)^[2] does not require the State to prove that a defendant possessed the necessary mental state to commit the crime, i.e. knowingly engaged in sexual relations with a female under 14, or that the defendant may not litigate that issue in defense, "offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental" and is, therefore, inconsistent with due process. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677 (1934).

104

In the case sub judice, according to the defendant, he intended to have sex with a 16, not a 13, year old girl. This mistake of fact was prompted, he said, by the prosecutrix herself; she and her friends told him that she was 16 years old. Because he was mistaken as to the prosecutrix's age, he submits, he is certainly less culpable than the person who knows that the minor is 13 years old, but nonetheless engages in sexual relations with her. Notwithstanding, the majority has construed section 463(a)(3) to exclude any proof of knowledge or intent. But for that construction, the proffered defense would be viable. I would hold that the State is not relieved of its burden to prove the defendant's intent or knowledge in a statutory rape case and, therefore, that the defendant may defend on the basis that he was mistaken as to the age of the prosecutrix.^[3]

105 106 107

 

108

Generally, a culpable mental state, often referred to as mens rea, see Wharton's Criminal Law, § 27, or intent, is, and long has been, an essential element of a criminal offense. Morissette v. United States, 342 U.S. 246, 251-52, 72 S.Ct. 240, 244, 96 L.Ed. 288, 294 (1952); Tate v. State, 236 Md. 312, 203 A.2d 882 (1964); Davis v. State, 204 Md. 44, 102 A.2d 816 (1953); Webb v. State, 201 Md. 158, 93 A.2d 80 (1952); Fenwick v. State, 63 Md. 239, 240-41 (1885). A crime ordinarily consists of prohibited conduct and a culpable mental state; a wrongful act and a wrongful intent must concur to constitute what the law deems a crime, the purpose being to avoid criminal liability for innocent or inadvertent conduct. See Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041, 1043 (1988); see also Wharton's Criminal Law, § 27, citing United States v. Fox, 95 U.S. 670, 24 L.Ed. 538 (1877). Historically, therefore, unless the actor also harbored an evil, or otherwise culpable, mind, he or she was not guilty of any crime.

109

The Supreme Court in Morissette, recognized that ordinarily, a defendant cannot be convicted when he or she lacks the mental state which is an element of the offense charged. That concept — crime as a compound concept — gained early acceptance in the English Common law and "took deep and early root in American soil."^[4] 342 U.S. at 251-52, 72 S.Ct. at 244, 96 L.Ed. at 294 (footnote omitted). In that case, Mr. Justice Jackson stated the proposition thusly:

110

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

111

 

112

Id. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 294 (footnotes omitted).

113

In Morissette, (id. at 247-48, 72 S.Ct. at 242, 96 L.Ed. at 292-93), the defendant, a scrap iron collector, went onto a government bombing range, where bomb casings were piled haphazardly. Morissette loaded the casings onto his truck in broad daylight and took them. He was indicted for "unlawfully, wilfully and knowingly steal[ing] and convert[ing]" property of the United States, in violation of 18 U.S.C. § 641, 18 U.S.C.A. § 641. He sought to defend on the basis that he thought the casings were abandoned, unwanted, and of no value to the government. The trial court refused to permit evidence on that point, which was affirmed on appeal. The Supreme Court reversed, holding that where intent is an essential element of the crime charged, its existence is a question of fact for the jury, and "the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act." Id. at 274, 72 S.Ct. at 255, 96 L.Ed. at 306. It was in this context that the Court discussed the importance of intent. The Court concluded:

114

The unanimity with which they [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge or "mens rea," to signify an evil purpose or mental culpability.

115

 

116

Id. at 252, 72 S.Ct. at 244, 96 L.Ed. at 294-95.

117

More recently, in Anderson v. State, 328 Md. 426, 444, 614 A.2d 963, 972 (1992), we held that the trial court improperly convicted the defendant for carrying concealed, pursuant to Article 27, § 36(a), a utility knife without considering the intent with which the utility knife was being carried. Noting that the utility knife could be used both as a tool and as a weapon, id. at 437-39, 614 A.2d at 968-69, we rejected the State's argument that no intent was required. Id. at 444, 614 A.2d at 971. We said instead that, when the object is not a dangerous weapon per se, to convict a defendant of carrying a concealed dangerous weapon requires proof that the defendant intended to use the object as a weapon. Id. at 444, 614 A.2d at 971.

118

Although it recognized that Congress could dispense with the intent requirement if it did so specifically, the Court made clear that that power was not without limit. Morissette, 342 U.S. at 275, 72 S.Ct. at 256, 96 L.Ed. at 307, citing Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943). Thus, when a legislature wants to eliminate intent as an element of a particular crime, it should expressly so state in the statute. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 118-19 (1965); see also People v. Hernandez, 61 Cal.2d 529, 536, 39 Cal. Rptr. 361, 365, 393 P.2d 673, 677 (1964) ("in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein criminal intent is lacking."); Singer, supra, at 397. Legislative imposition of strict criminal liability, however, must be within constitutional limits; it cannot be permitted to violate the Due Process requirement of the Fourteenth Amendment, see Lambert v. California, 355 U.S. 225, 227, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957), or a comparable state constitutional provision. See infra.

119 120 121

 

122

Strict liability crimes are recognized exceptions to the "guilty mind" rule in that they do not require the actor to possess a guilty mind, or the mens rea, to commit a crime. See Morissette, 342 U.S. at 251-52 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8. His or her state of mind being irrelevant, the actor is guilty of the crime at the moment that he or she does the prohibited act.

123 124 125

 

126

In the evolution of the statutory criminal law, two classes of strict liability crimes have emerged. Richard A. Tonry, Statutory Rape: A Critique, La.L.Rev. 105 (1965). One of them consists of "public welfare" offenses. See id.; see also Dawkins, 313 Md. 638, 547 A.2d 1041. Typical of this class are statutes involving, for example, the sale of food, drugs, liquor, and traffic offenses, see Tonry, supra, at 106, designed to protect the health, safety, and welfare of the community at large; violation of such statutes "depend on no mental element but consist[s] only of forbidden acts or omissions." Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. In the case of public welfare offenses, strict liability is justified on several bases, including: (1) only strict liability can deter profit-driven manufacturers from ignoring the well-being of the consuming public; (2) an inquiry into mens rea would exhaust the resources of the courts; (3) imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law because the penalties are small and carry no stigma; and (4) the legislature is constitutionally empowered to create strict liability crimes for public welfare offenses. Singer, supra, at 389.

127

In Dawkins, 313 Md. at 644-645, 547 A.2d at 1044-45, this Court discussed the development of public welfare offenses and noted their characteristics:

128

"Public Welfare Offenses" are generally regulatory in nature. The earliest cases involved liquor and adulterated milk.... Later cases expanded the doctrine to apply to violations of traffic regulations and motor vehicle laws, sales or misbranded articles, and sales or purchases in violation of anti-narcotics laws.... These offenses commonly involve light fines or penalties. .. . "[T]he penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest...." Additionally, the purpose of the penalty is to regulate rather than to punish behavior.... While liability is imposed regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring....

129

 

130

313 Md. at 645, 547 A.2d at 1044 (citations omitted). The Supreme Court has also commented on such offenses, observing:

131

These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.

132

 

133

Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296. To like effect,

134

... public welfare offenses are new crimes, created solely by legislative enactments in the nature of police regulations. Moreover, these offenses are not strictly criminal, even though traditional criminal sanctions are relied upon, since the primary purpose of the legislature is neither punishment nor correction, but rather regulation.

135

 

136

Myers, supra, at 114 (footnote omitted).

137

Obviously, and the majority concurs, see majority opinion at 579, "statutory rape" is not merely a public welfare offense; it simply does not "fit" the characteristics of such an offense: it is a felony, not a misdemeanor. In striking contrast to "other strict liability regulatory offenses and their light penalties," majority opinion at 579, the potential penalty of 20 years imprisonment is not a light penalty; unlike the "garden variety" strict liability penalty, the penalty under section 463(a)(3), is neither so insignificant that it can be ignored as a criminal sanction, see Singer, supra, at 394, nor so slight that the fate of the defendant can be ignored, see Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, § 31, at 219 (1972) ("The greater the possible punishment, the more likely some fault is required; and conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault."); and section 463's primary purpose is to penalize the "rapist", not to correct his or her behavior.^[5]

138 139 140

 

141

The second class of strict liability offenses, having a different justification than public welfare offenses, consists of narcotic,^[6] bigamy,^[7] adultery, and statutory rape crimes. See Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8; Tonry, supra, at 106. State legislatures have historically used two theories to justify imposing strict liability in this class of offense: "lesser legal wrong" and "moral wrong." See Benjamin L. Reiss, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377, 381-82 (1992).

142

The lesser legal wrong theory posits that a defendant who actually intended to do some legal or moral wrong is guilty not only of the crime intended but of a greater crime of which he or she may not have the requisite mental state. LaFave and Scott, supra, § 47, at 360. The elimination of a mens rea element for statutory rape is rationalized by focusing on the defendant's intent to commit a related crime. Reiss, supra, at 381. In other words, if fornication^[8], engaging in sexual intercourse out of wedlock, see generally Model Penal Code, § 213.6, Comment at 430-39, is a crime, a defendant intending to engage in sex out of wedlock is made to suffer all of the legal consequences of that act. Statutory rape is such a legal consequence when the other participant is below the age of consent. Reiss, supra, at 382. The theory is premised, in short, upon the proposition that, as to certain crimes, "a `guilty mind' in a very general sense, should suffice for the imposition of penal sanctions even when the defendant did not intentionally or knowingly engage in the acts proscribed in the statute." See LaFave and Scott, supra, § 47, at 361.