Berry on Criminal Constitutional Avoidance

William W. Berry III (University of Mississippi School of Law) has posted Criminal Constitutional Avoidance on SSRN. Here is the abstract:

Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.

This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have a constitutionally clear meaning (and are not void-for-vagueness) or do not have a constitutionally clear meaning (and are void for vagueness). In other words, this article claims that the absence of statutory ambiguity — one interpretation that complies with the Constitution and one interpretation that indicates constitutional infirmities — in void-for-vagueness cases makes the use of the avoidance canon improper in such cases.

The Full article can be found here.