Connecticut stalking law not void for vagueness

One way to challenge your criminal conviction is to argue that the criminal statute is unconstitutionally vague. The Constitution requires that the criminal law be clear and understandable, and due process requires that level of clarity before the government can restrict your liberty and put you in jail. We normally associate this theory with criminal cases, but it can also arise in immigration law.

The Second Circuit handled this issue in Arriaga v. Mukasey, decided on March 27. The government tried to deport Arriaga because he was convicted of the crime of stalking. Under the immigration laws, "Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is
deportable.”

After he lost in Immigration Court, Arriaga went to Federal court, arguing that the Connecticut stalking law is vague in violation of the Constitution. Here's what that law says:

A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.

As the Second Circuit tells us, "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.” This language is taken from a Supreme Court case, Kolender v. Lawson, 461 U.S. 352, 357 (1983).

The Court of Appeals finds that, as applied to Arriaga, the Connecticut law is not vague. Laws do not have to be drafted with razor-like precision to let everyone know what's illegal. "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” The problem for Arriaga is that we all know what stalking entails:

In virtually every state, stalking entails: (1) conduct beyond a single occasion, (2) intentionally or purposefully directed at a specific person, with (3) the consequence of instilling fear in that person. State penal codes vary considerably in such particulars as the types of conduct (e.g., following, pursuing, surveilling, cyberstalking), the level of intent (general or specific), and the standard of fear (objective or subjective). . . . The widely-accepted core meaning of stalking is demonstrated by the failure of almost every void-for-vagueness challenge brought against state stalking laws.

Since the Connecticut stalking law is comparable to that of other states, and in certain respects places a greater burden of proof on the prosecutor, he cannot raise a vagueness challenge. This is particularly true since that law does not vest significant discretion in prosecutors and therefore does not create the realistic likelihood that the law will snag innocent people improperly accused of stalking.