Hicks v. District of Columbia
383 U.S. 252 (1966)

Annotate this Case

U.S. Supreme Court

Hicks v. District of Columbia, 383 U.S. 252 (1966)

Hicks v. District of Columbia

No. 51

Argued October 21, 1965

Decided February 28, 1966

383 U.S. 252

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Certiorari dismissed.

Report below: see 197 A.2d 154.

PER CURIAM:

The writ of certiorari is dismissed as improvidently granted.

MR. JUSTICE HARLAN, concurring.

Among the several reasons which support the action of the Court in dismissing the writ in this case as improvidently granted, I rest my decision to join in this disposition on the lack of a record, without which I do not believe the constitutional issues tendered can properly be decided.

MR. JUSTICE DOUGLAS, dissenting.

I

We granted certiorari in this case to consider what I think is an important question: the constitutionality of petitioner's conviction of "vagrancy." Relying on our determination that this case presented substantial questions

Page 383 U. S. 253

of constitutional law, the parties comprehensively briefed those questions, and we heard argument. But now the Court decides that the writ of certiorari must be dismissed as improvidently granted.

With all respect, I must dissent from this disposition of the case.

In the first place, the alleged "untimeliness" of the petition was called to the attention of the Court by respondent in its brief opposing the grant of certiorari. We were thus fully aware of this point when we granted the writ. Moreover, Rule 22(2) is not jurisdictional or mandatory, and may be waived by this Court under proper circumstances, at least where no jurisdictional statute is involved. Heflin v. United States,358 U. S. 415, 358 U. S. 418, n. 7. Having brought the case here, required the parties to brief the issues, and heard argument, it is most inappropriate to decline to exercise our discretion and waive the time bar of Rule 22(2). [Footnote 1]

Nor, in my opinion, is the objection to the adequacy of the record well founded. Petitioner argued in this Court that the statute defining "vagrant" is unconstitutionally vague. The challenged statute is § 22-3302(3) of the District of Columbia Code, and it provides that a "vagrant" is:

"Any person leading an immoral or profligate life who has no lawful employment and who has no

Page 383 U. S. 254

lawful means of support realized from a lawful occupation or source."

We do not need a detailed account of the particular facts of this case in order to pass on the claim that this statute lacks the specificity that due process of law requires. In Lanzetta v. New Jersey,306 U. S. 451, 306 U. S. 453, we said:

"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. . . . It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. . . . No one may be required, at peril of life, liberty, or property, to speculate as to the meaning of penal statutes."

The Court held the challenged statute bad in that case without considering the defendant's conduct which formed the basis of the prosecution. If a penal statute is so imprecise as to deny fair warning to those who might transgress it, any conduct of the defendant prosecuted under it which might have been proscribed by a more precisely worded statute is irrelevant.

The Lanzetta case is close kin to the present one because the crime there charged was one of being a "gangster," which was defined as 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 any other state."

306 U.S. at 306 U. S. 452. The Court, without considering the facts of record, looked only at the statute and the charge of the indictment and ruled that the Act was unconstitutional for vagueness.

If one takes my view and approaches this case as an attempt by the Government to regulate the status of

Page 383 U. S. 255

being a vagrant, the absence of a detailed record is -- as with the vagueness point -- no impediment to proper analysis.

II

Our vagrancy laws stem from the series of the Statutes of Labourers (23 Edw. 3; 25 Edw. 3, Stat. I) first passed in 1349 and amended and modified from time to time over the next 200 years. [Footnote 2] They reflected "the criminal aspect of the poor laws." [Footnote 3] They

"confined the labouring population to stated places of abode, and required them to work at specified rates of wages. Wandering or vagrancy thus became a crime. [Footnote 4]"

History tells the story from the point of view of the Establishment: that wandering bands of people, who had left their masters, committed all sorts of crimes, and hence must be punished for wandering. That philosophy obtains in this country, because

Page 383 U. S. 256

the English statutes provided the seed of our vagrancy laws. Article IV,

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