di determinatezza and the Void-for-Vagueness Doctrine in Constitutional Litigation: The Italian Corte Costituzionale and the United States Supreme Court
© Springer International Publishing Switzerland 2015Laura Pineschi (ed.)General Principles of Law – The Role of the JudiciaryIus Gentium: Comparative Perspectives on Law and Justice4610.1007/978-3-319-19180-5_9
Principio di determinatezza and the Void-for-Vagueness Doctrine in Constitutional Litigation: The Italian Corte Costituzionale and the United States Supreme Court
Ph.D. Candidate in Criminal Law, University of Parma, Parma, Italy
This chapter offers a comparative analysis between the principio di determinatezza and the void-for-vagueness doctrine in the jurisprudence of the Italian Corte Costituzionale and the United States Supreme Court. The analysis starts by considering the theoretical underpinnings of the principio di determinatezza, which can be summarized in a separation-of-powers rationale, on the one hand, and a fair notice rationale, on the other. Then, the analysis moves on to an examination of the vagueness doctrine in the United States Supreme Court. The two main pillars of the principle are the necessity to assure fair notice to the common person and to prevent an arbitrary enforcement of the law by government officials. Notwithstanding some deep institutional differences, both Courts developed the two doctrines with a particular focus on the foreseeability and predictability of the law measured with the standard of the common person.
1 Principio di determinatezza and the Italian Corte Costituzionale
1.1 The Theoretical Underpinnings of the Principle
Italian criminal law is governed by many constitutional principles. Although labels such as “civil law” and “common law” legal system should not carry too much weight (since they obscure important points of contacts between the two families), it is nonetheless true that they have some residual importance. In fact, consistently with what the ordinary lawyer imagines a civil law Country to be, these constitutional principles received a conspicuous doctrinal, rather than judicial, elaboration. Consequently, if one wants to approach Italian criminal law, she should understand that studying what in the United States are called “secondary sources” is at least as important as studying cases.
Among these principles we find the principio di determinatezza, which we can roughly translate as “principle of determinacy” or “principle of precision”.1 To begin with, the principle is derived, in the first instance, from Article 25(2) of the Italian Constitution, embodying the principle of legality: “Nobody can be punished if not pursuant to a statute promulgated before the fact”.2 If we focus on the word “statute”, we can understand that a vague provision would leave criminalization choices to the adjudicating court, which would in turn be free to read whatever it wants into the blurry wording. In this way, of course, nullum crimen sine lege would be readily circumvented.3 At the same time, since Article 13 of the Constitution commands the utmost precision in imposing temporary incapacitating measures, it has been argued that substantive criminal law needs at least the same level of accuracy.4
Also, the principle is fixed at a sub-constitutional level in Article 1 of the Italian Criminal Code, where it is provided that:
No one can be punished for a conduct unless this conduct is expressly made criminal by statute, nor can he be punished with sanctions not provided by the same statute.5
It is clear that, on the one hand, the principle is a defense against judicial overreaching: criminal law should be as clear as possible to bridle judicial discretion.6 In this case, the rationale that animates the principle is guaranteeing individual liberty through the enforcement of separation of powers.7 In fact, in the Italian constitutional design, parliament is entrusted with legislative power, while the judicial branch is in charge of adjudicating cases according to the law. Consequently, criminal laws should be clear in what they proscribe to assure that criminalization choices are effectively entrusted to the ones empowered by the people and not to unelected officials.8
On the other hand, though, the principle is a guarantee set up to assure informed choices of actions.9 Consequently, its second rationale is protection of liberty through the means of clarity and predictability of the law. In fact, only a well-defined, precise statute has the capacity to inform the ordinary citizen of the consequences of her actions. This clean and neat observation has Enlightenment roots or, more precisely, it is of “Beccarian” descent: if the core of the legality principle is about preserving the citizens’ right to self-determination and freedom, then we should aim for precise laws which have the capacity to guide people’s actions.10
The principio di determinatezza pledges to defend the parliament’s prerogative in making criminalization choices, while at the same time advocating for the citizens’ freedom of choice. But whom does the principle speak to? The answer is twofold. The parliament, to be sure, is the one charged with defending its own power: if this body does not want power to slip from its own hands, it must draft precise laws. Unfortunately, sometimes parliament is counterintuitively incentivized to let its power fade in favor of judicial discretion. In fact, at times, parliament does not have the political will to thoroughly reform the criminal law and would rather leave the task to the judiciary. Then, if the reform works out well, parliament can take credit for it by saying that it wisely chose to solve the problem by allowing larger discretion, while if it does not work, parliament can always blame courts for misusing their power.
On the other hand, the principle speaks to courts, commanding them to obey the literal command of the law. The judicial branch has, in fact, all sorts of instruments to overstep the textual meaning of a provision, such as analogical reasoning, but it should refrain to use them in the field of the criminal law.11
Finally, it has been said that the principle speaks to legal scholars too: given the importance of scholarship in explaining the meaning of constitutional principles relevant to the criminal law, authors should concentrate their theoretical efforts toward formulating clear and comprehensible doctrines.12
Of course, much time has passed since the eighteenth century. Nonetheless, the fundamental insights of authors like Cesare Beccaria have been the basis on which more recent scholarship built complex theoretical conceptions. For one, Italian authors have focused on the nexus between principio di determinatezza and principio di colpevolezza (which can be translated as “principle of culpability”). Pursuant to the latter, in order to establish criminal liability, there should always be a psychological link between the author and the criminal conduct. This link should, at a minimum, be a “negligence” link, in the sense that either the person voluntarily acted in a certain way or at least did so negligently (by disregarding some rule of conduct that commanded him, for example, to abstain from acting).
A prerequisite for establishing criminal liability is, consequently, the positive validation of this nexus between the person and the crime. This link, in turn, presupposes that the content of the law is reasonably clear. The concept requires some elaboration. To begin with, textual clarity is just a part of a wider idea of clarity. For the law to be “understandable” we need, to be sure, a clear text but we also need criminal provisions consonant with constitutional values and cultural norms as well as a consistent judicial interpretation of them (i.e. foreseeable and predictable).13 Finally, we may add that overcriminalization is, in this case, an evil to be avoided too: the misuse of the criminal law to fix every societal problem renders penal provision less and less useful in governing one’s conduct.14 If the criminal law were employed to proscribe only the worst category of conduct, it could be more readily understood.15
At the same time though, the Corte costituzionale, in decision no. 96 of 1981, has added a different dimension to the principle of precision, which may not be readily apparent from the textual formulation of Article 25(2) of the Constitution and Article 1 of the Criminal Code. According to the Court, the principio di determinatezza imposes an additional burden on the legislator. In fact, criminal provisions must be clearly and precisely formulated, but at the same time they should also be verifiable in the real world. In particular, in drafting a provision, the legislator should keep in mind that the correspondence between the wording of the statute and the conduct must be empirically verifiable by the adjudicating court.16
In conclusion, we should keep in mind that the principio di determinatezza does not only mean textual clarity, but that it involves multiple additional dimensions, such as consonance with social mores, consistency of judicial interpretation, as well as a connection with the principio di colpevolezza. 17 These ideas have, as we mentioned noble Enlightenment origin and not surprisingly the seeds of many of them could already be seen in famous works such as Dei delitti e delle pene, authored by Cesare Beccaria.18 At the same time, the principle commands that criminal provisions must have a close connection to reality: they should proscribe a “verifiable” course of conduct. Otherwise, the adjudicating court would be left in the impossibility of checking the correspondence between what is written in the statute and what happened in the real world.19
As we anticipated, we were able to paint the theoretical foundation of the principio di determinatezza in broad strokes only. A full or at least semi-comprehensive picture would require a much bigger effort, hardly containable in the scope of the present work. To be sure, Italian legal scholarship produced a great scientific effort in illuminating the intimate nature of the “principle of precision”. Nonetheless, Italian legal provisions are far from perfect or even “recognizable”. If we consider that it was the Corte costituzionale in 1988 that finally give constitutional status to this refined conceptualization of the principio di determinatezza, through its connection with the principio di colpevolezza, we would expect to find many instances in which laws were struck down because of their vagueness. Unfortunately, we can point to only two of them and, consequently, we should analyze the reasons for this extreme paucity.
1.2 The Analysis of the Principio di determinatezza in the Decisions of the Italian Corte Costituzionale
To begin with, we should note that in the Italian system only the Constitutional Court is empowered to declare laws unconstitutional. The system is set up in a way that national courts work as a filter for the constitutional cases to be brought to the Corte costituzionale. A trial or appellate court that, in deciding a case, encounters a norm (directly relevant to its decision) that the court suspects to be unconstitutional should refer it to the Corte costituzionale through the means of a judicial motion (ordinanza di rimessione). In this motion, the court sets forth a theory according to which the challenged norm is unconstitutional. The Corte costituzionale would then evaluate the validity of the referring court’s construction to decide on the constitutionality of the provision under scrutiny.
One area with which the Corte costituzionale was historically concerned is the use of generic expressions in legislative drafting. This writing technique usually takes different forms, such as the use of examples, “synthesizing” expressions,20 or also of general clauses.21 The Corte costituzionale has constantly upheld laws using this drafting method. Of course, this does not mean that parliament may indiscriminately legislate in this fashion, but rather that, if contained within reasonable boundaries, it might do so.22 In fact, the law simply cannot take expressly into account every possible variation on the criminal scheme. Consequently, recapitulatory expressions may be used. More in general, this is also a distinctive feature of Italian legislative technique, which is aptly called normazione sintetica (synthetic drafting).23
The Corte costituzionale has allowed the use of such expressions by noting that general clauses or “closing” clauses are permissible as long as they do not encourage the interpreting court to overstep its legitimate interpretative boundaries. To be clearer, as long as an expression such as “other similar trades” in a provision prohibiting the performance of “wandering trades” may be expounded without resorting to impermissible means, such as analogical reasoning, it will be permitted.24
At the same time, it is not uncommon to see criminal provisions ending with closing provisions such as “and similar cases”. In these instances, the Corte costituzionale has upheld the constitutionality of such “wrap-up” terms under familiar principles of statutory construction. According to the Corte costituzionale, this terminology is constitutionally acceptable, as in the case seen in the preceding paragraph, as long as it empowers courts to use simple interpretative powers (such as eiusdem generis) only, while it will not be permitted if it encourages, for example, the use of analogical reasoning (which is constitutionally forbidden).25 In particular, the constitutional “precision” principle can to a certain extent be collapsed with the concept of analogy, in the sense that a vague provision can be defined as the one requiring the use of analogical reasoning for its application.26
Also the Corte costituzionale has consistently favored the proposition that an otherwise indeterminate provision may be clarified by reference to “common extralegal concepts” or to “ordinary or technical experience”.27 The Corte costituzionale has also been willing to “cure” some degree of indeterminacy in an element of a criminal provision if the offense, taken as whole, matches the parallel societal understanding of it.28
An example would be decision no. 191 of 1970, which upheld Articles 527, 528 and 529 of the Criminal Code. The mentioned provisions proscribe certain obscene conduct, characterized by publicity (i.e. carried out in a public place) or reproduction in printing. On the notion of “obscene”, the Corte costituzionale stated that:
When the criminal law protects something immaterial (such as respectability, honor, reputation, prestige, decency or others), it is inevitable to refer to notions nestled in common language and intelligence. Nobody has ever thought that this may violate the principle of legality.29
Another example would be decision no. 172 of 2014, which is the most recent example of a precedent in which the Corte costituzionale explicitly validated the use of “synthetic” expressions. In the case of the crime of stalking, which was introduced in 2009, the legislator chose to use this type of expression to describe the typical results of stalking acts. Article 612-bis of the Criminal Code describes three possible results of the criminal stalking conduct: a persistent and serious state of fear or anxiety, a well-founded concern for one’s or one’s relatives’ safety and a change in one’s life habits.30 In the mentioned decision, the Corte costituzionale noted that such expressions have been constantly employed on a comparative level in other legal systems in enacting the crime of stalking. Also, the Corte costituzionale underscored that it is possible to assign these expressions a clear and precise meaning through an integrated, systemic and teleological approach to interpretation.31
In conclusion on the point, the Corte costituzionale is not ready to reduce itself to a narrow textual interpretation of a criminal provision. In its interpretative endeavor, the Corte costituzionale will read it in conjunction with other similar norms belonging to the same area of the criminal law. Also, the adjudicating court should be guided by legislative intent in promulgating the particular provision.32
Moreover, the Corte costituzionale has recognized a definite role for judicial interpretation in implementing the principio di determinatezza. On the one hand, a constant “clarifying interpretation” of a criminal provision can help in narrowing down its otherwise broad meaning.33 At the same time, consistency in judicial interpretation of a certain provision can be taken as partial proof of the sufficient “clarity” of a challenged provision.34
It may be added though that the Corte costituzionale, in decision no. 327 of 2008, added two caveats to the “clarifying power” of judicial interpretation. First of all, allowing this power to sweep too broadly would unduly infringe the separation of powers, since the extreme version of such a power would allow courts to carve out a completely different meaning from the one intended by the legislator. Secondly, since the criminal law must be the guide of individual conduct, it must be able to do so from the very first moment. Individual actions cannot “wait” for the courts’ intervention in clarifying an otherwise indeterminate meaning. Besides, these illuminating decisions may remain unknown to the ordinary citizen altogether.35 At the same time, while the idea of an ordinary citizen actually consulting the Criminal Code to guide her actions is to a certain extent36 fictional, it is also true that if we added the duty of relevant judicial decisions to our hypothetical citizen’s burden, our image would become not only slightly fictitious but utterly unreal.
Nonetheless, the only interpretative sector of the principio di determinatezza under which provisions were actually struck down is the one requiring statutory provisions to have a direct, verifiable link to reality. The Corte costituzionale has declared the unconstitutionality of criminal laws pursuant to Article 25(2) of the Italian Constitution (in its “principle of precision” part) in only two cases.
The first decision belonging to this exclusive “club” was issued on 16 December 1980. The case37 is interesting in a comparative perspective because it involved, like Papachristou v. City of Jacksonville (which we will discuss in the part dedicated to the United States Supreme Court’s jurisprudence) nothing less than the Italian version of a vagrancy statute.38 Pursuant to Article 1, no. 3 of Law no. 1423 of 1956, it was possible, for the local police commissioner, to issue a “preventive measure” against an individual that, for reason of his “behavior”, gave rise to “valid motives” to conclude that he was “inclined to commit crimes”. The Court concluded that the standard set forth in the statute was not judicially ascertainable. In fact, a criminal provision, to pass constitutional muster, must describe a course of conduct that is effectively verifiable by the adjudicating court.39
The second and last decision striking down a statute on indeterminacy grounds was laid down on 9 April 1981.40 In this case, the Corte Costituzionale declared Article 603 of the Italian Criminal Code unconstitutional. Pursuant to the mentioned provision: “Anybody who exercises its power on any person, up to the point in which this person is totally subjugated, will be punished with a term of imprisonment not to be inferior to five and not to exceed fifteen years”.41
The Corte costituzionale concluded, once again, that criminal provisions must have a strong link to perceivable reality. This is to mean that what is described in abstract in the law must be meaningfully comparable to the events of the real world. In other words, a court must be able to judicially verify the legal resemblance between the conduct of the defendant and the abstract provision. In this case, the possible courses of conduct that may lead to the exercise of power (absent physical constraints) on the victim were absolutely unclear. Also, in preceding lower courts’ decisions on Article 603 of the Criminal Code, the required “state of total subjugation” was never found nor proved. The Corte Costituzionale noted that this result followed from the fact that “total subjugation” is a term with no correspondence in reality. In fact, subjugation can never be “total”, but it can only be partial to different degrees.42
1.3 Conclusion on the Principio di determinatezza in Italian Constitutional Adjudication
As we have seen, the Corte costituzionale has struck down only two provisions on the ground of indeterminacy. One may think that the Corte costituzionale, as sometimes happens in American constitutional law, is not particularly interested in breathing life into a particular constitutional clause. Nonetheless, we should conclude that this is not the case, since both the Corte costituzionale and legal scholarship have underscored on countless occasions how important the principio di determinatezza is to the legality ideal. At the same time, the Corte costituzionale’s self-perception of its institutional role militates against enforcing the principle more aggressively.
Apart from abstract commitments, should we conclude that the principle of precision, at least when it commands the drafting of “understandable” criminal provisions, has no bite? Not entirely, since the force of the principle is not to be measured by its judicial applications only. The principio di determinatezza is in fact a fundamental canon of interpretation for courts and of legislation for the parliament.43 The Corte costituzionale, as we said, out of high deference and of an acute self-perception of its institutional role, is on the other side not willing to step into the “political” arena and enforce the principle vigorously.
Consequently, we should read such paucity of cases as a mirror image of the Corte costituzionale’s self-restraint. Also, we submit that high deference to legislative power with respect to criminalization choices can also be listed as an alternative explanation.
In conclusion, as a matter of fact, it is fair to say that the Corte costituzionale exercises self-restraint to a very substantial degree. It has been suggested that, according to the Court, choices concerned with “what” and “how” to criminalize cannot be disconnected from the type of judgment that the principio di determinatezza requires. Leaving the substantial limits on criminalization choices aside (since they concern a different even if connected constitutional principle, called the principio di offensività), we may at least concede that the line that separates permissible neutral review of drafting choices and impermissible overstepping into inviolable legislative discretion is a thin one.
This approach has sparked some critical objections.44 Nonetheless, this course of action has been constantly followed by the Corte costituzionale since 1956 and it is not bound to change anytime soon.
2 The Void-for-Vagueness Doctrine in American Constitutional Law
The vagueness doctrine is one of the three instruments employed in the United States to reach the goals of foreseeability and predictability in the interpretation of the law45 and it also considered one of the doctrines implementing the principle of legality. Consequently, it can fairly be characterized as the most concrete means through which the rule-of-law ideal is put in practice. The doctrine requires the criminal law to be drafted as precisely as possible, to allow the common man to distinguish between what is prohibited and what is not. Also, the degree of precision reached should be enough to prevent discriminatory or arbitrary enforcement.46
The void-for-vagueness doctrine has not been developed in the criminal law context. In fact, it is traditionally taught and categorized within the realm of constitutional law. Nonetheless, its most relevant applications are to be found in the criminal sphere, where the government power reaches its peak.47 The vagueness doctrine finds its origin in the Due Process Clause of the Fifth48 and Fourteenth49 Amendments of the United States Constitution.
The final step in establishing the Fifth and Fourteenth Amendments as the constitutional foundation of the doctrine was Cline v. Frink Dairy Co. (1927).50 In Cline, a state antitrust statute was declared unconstitutional as impermissibly vague, citing these two constitutional provisions as the basis for the decision.51
In the following paragraphs we will describe the main features of the doctrine (which is fundamental in implementing the legality ideal in American criminal law) with particular regard to its evolution in the jurisprudence of the United States Supreme Court. We will also keep in mind that, notwithstanding its importance, the doctrine has left many interpreters puzzled and it has many foggy corners that need to be explored.52
First of all, we must ascertain the intimate ratio of the void-for-vagueness doctrine. In fact, on the one hand, the doctrine has been defined “among the most important guarantees of liberty under law”,53 while on the other hand United States Supreme Courts have almost consistently failed to define its fundamental structure, except on infrequent occasions. Moreover, these rare moments of clarity have been riddled with contradictions.54
A problematic aspect of the doctrine is establishing the limit of judicial power in its operational sphere. In particular, it is not clear if a court could examine a provision without reference to concrete circumstances (i.e. on its face) or if, on the contrary, it should stick to an as-applied challenge (i.e. in light of the factual circumstances that surrounded the conduct). Moreover, we should establish if the boundaries of indeterminacy are the same for every norm or if, on the contrary, they are differently set for each type of provision examined. More in general, there is some uncertainty on how the court should navigate the unexplored waters of the doctrine. What should the court consider? Are there boundaries that cannot be crossed?55