Although legislation is required to embrace a degree of flexibility to enable the interpretive role of the judiciary, there are sometimes instances where ambiguity becomes so manifest that the courts are forced to discount the validity of such statute when constitutional rights are impinged without redress; as was found in this case between innocent individuals and a seemingly overzealous State.
In the Court of Quarter Sessions of Cape May County, the named petitioner and his two acquaintances were indicted and charged with being gangsters under § 4 of the Revised Statutes of New Jersey 1937, which stated in part that:
“Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person or who has been convicted of any crime, in this or in any other State, is declared to be a gangster….”
And thereby sentenced to between five and ten years hard labour on grounds that the men had been previously convicted of criminal offences in Pennsylvania before entering the State; to which, the men appealed in the New Jersey Supreme Court on grounds that their convictions violated the Due Process Clause of the U.S. Constitution.
Here, the court referred to State v. Bell, in which it had held that:
“[A] state may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out.”State v. Bell
And so upheld the previous judgment, while holding that in defence of the legislation:
“[T]he statute is not aimed at punishing convicted criminals because they are convicted criminals, but because, being such, they become members of a gang organized to plot and commit further crimes, and neglect or refuse to engage in any lawful occupation.”
Whereupon, the men filed a writ of error to the Court of Errors and Appeals of New Jersey, who simply upheld the supreme court judgement in light of the more recent State v. Gaynor, in which it had held that:
“[T]his statutory provision does not predicate criminality upon bad repute alone or mere evil intent in an individual, not aggravated by association with others for a like common purpose. Nor is there lacking a certain, definite, and immutable standard of conduct, the nonobservance of which fixes guilt. It therefore satisfies the test of the Fourteenth Amendment of the Federal Constitution and the due process requirements of our State Constitution….”State v. Gaynor
To which, the petitioners appealed again to the U.S. Supreme Court, who took the time to reexamine the constitutionality of the previous verdicts.
In the first instance, the Court turned to Connally v. General Const. Co., in which it had held that:
“[T]he terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”Connally v. General Const. Co.
Before explaining that had the statute instead stated:
“Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons (meaning a company of persons acting together for some purpose, usually criminal, or a company of persons who go about together or who act in concert, mainly for criminal purposes), who has been convicted at least three times of being a disorderly person or who has been convicted of any crime in this or in any other State, is declared to be a gangster (meaning a member of a gang of roughs, hireling criminals, thieves, or the like).”
The court’s application would have remained well within the limits of the Due Process Clause; however, that was clearly not the case here; and so, the Court was left with no option other than to reverse the previous judgment in full, while explaining to those present that:
“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.”