SOURCE: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=306&page=451

Messrs. Samuel Kagle and Harry A. Mackey, both of Philadelphia, Pa., for appellants.

Messrs. Robert Peacock, of Mount Holly, N.J., and French B. Loveland, of Ocean City, N.J., for appellee. [306 U.S. 451, 452]  

In the court of quarter sessions of Cape May County, appellants were accused of violating the quoted clause. The indictment charges that on four days, June 12, 16, 19, and 24, 1936 'they, and each of them, not being engaged in any lawful occupation; they, and all of them, known to be members of a gang, consisting of two or more persons, and they, and each of them, having been convicted of a crime in the State of Pennsylvania, are hereby declared to be gangsters.' There was a trial, verdict of guilty, and judgment of conviction on which each was sentenced to be imprisoned in the state prison for not more than ten years and not less than five years, at hard labor. On the authority of its recent decision in State v. Bell, 188 A. 737, 15 N.J.Misc. 109, the Supreme Court entered judgment affirming the conviction. State v. Pius, 118 N.J.L. 212, 192 A. 89. The Court of Errors and Appeals affirmed, 120 N.J.L. 189, 198 A. 837, on the authority of its deci- [306 U.S. 451, 453]   sion, State v. Gaynor, 119 N.J.L. 582, 197 A. 360, affirming State v. Bell.

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. Cf. United States v. Reese, 92 U.S. 214 , 221; Czarra v. Board of Medical Supervisors, 25 App.D.C. 443, 453. It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. See Stromberg v. California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A.L. R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666. 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. 2 The applicable rule is stated in Connally v. General Const. Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127: 'That the 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.'

The phrase 'consisting of two or more persons' is all that purports to define 'gang'. The meanings of that [306 U.S. 451, 454]   word indicated in dictionaries and in historical and sociological writings are numerous and varied. 3 Nor is the [306 U.S. 451, 455]   meaning derivable from the common law,4 for neither in that field nor anywhere in the language of the law is there definition of the word. Our attention has not been called to, and we are unable to find, any other statute attempting to make it criminal to be a member of a 'gang.' 5  

In State v. Gaynor, supra, the Court of Errors and Appeals dealt with the word. It said: 'Public policy ordains that a combination designed to wage war upon society shall be dispersed and its members rendered incapable of harm. This is the objective of section 4 ... and it is therefore a valid exercise of the legislative power. ... The evident aim of this provision was to render penal the association of criminals for the pursuit of criminal enterprises; that is the gist of the legislative expression. It cannot be gainsaid that such was within the competency of the Legislature; the mere statement of the purpose carries justification of the act. ... If society cannot impose such taint of illegality upon the confederation of convicted criminals, who have no lawful occupation, under circumstances denoting ... the pursuit of criminal objectives, it is helpless against one of the most menacing forms of evil activity. ... The primary function of government ... is to render security to its subjects. [306 U.S. 451, 456]   And any mischief menacing that security demands a remedy commensurate with the evil.' (119 N.J.L. 582, 197 A. 361.)

Appellants were convicted before the opinion in State v. Gaynor. It would be hard to hold that, in advance of judicial utterance upon the subject, they were bound to understand the challenged provision according to the language later used by the court. Indeed the state Supreme [306 U.S. 451, 457]   Court (State v. Bell, supra) went on supposed analogy between 'gang' and offenses denounced by the Disorderly Persons Act, Comp.Stat.Supp.1930, 59-1 R.S.N.J.1937, 2:202-1, upheld by the Court of Errors and Appeals in Levine v. State, 110 N.J.L. 467, 470, 166 A. 300. But the court in that case found the meaning of 'common burglar' there involved to be derivable from the common law.

The descriptions and illustrations used by the court to indicate the meaning of 'gang' are not sufficient to constitute definition, inclusive or exclusive. The court's opinion was framed to apply the statute to the offenders and accusation in the case then under consideration; it does not purport to give any interpretation generally applicable. The state court did not find, and we cannot, that 'gang' has ever been limited in meaning to a group having purpose to commit any particular offense or class of crimes, or that it has not quite frequently been used in reference to groups of two or more persons not to be suspected of criminality or of anything that is unlawful. The dictionary definitions adopted by the state court extend to persons acting together for some purpose, 'usually criminal', or 'mainly for criminal purposes'. So defined, the purposes of those constituting some gangs may be commendable, as, for example, groups of workers engaged under leadership in any lawful undertaking. The statute does not declare every member to be a 'gangster' or punishable as such. Under it, no member is a gangster or offender unless convicted of being a disorderly person or of crime as specified. It cannot be said that the court intended to give 'gangster' a meaning broad enough to include anyone who had not been so convicted or to limit its meaning to the field covered by the words that it found in a dictionary, 'roughs, hireling criminals, thieves, or the like'. The latter interpretation would include some obviously not within the statute and would exclude some plainly covered by it. [306 U.S. 451, 458]   The lack of certainty of the challenged provision is not limited to the word 'gang' or to its dependent 'gangster'. Without resolving the serious doubts arising from the generality of the language, we assume that the clause 'any person not engaged in any lawful occupation' is sufficient to identify a class to which must belong all capable of becoming gangsters within the terms of the provision. The enactment employs the expression, 'known to be a member'. It is ambiguous. There immediately arises the doubt whether actual or putative association is meant. If actual membership is required, that status must be established as a fact, and the word 'known' would be without significance. If reputed membership is enough, there is uncertainty whether that reputation must be general or extend only to some persons. And the statute fails to indicate what constitutes membership or how one may join a 'gang'.

[ Footnote 1 ] The section continues: 'provided, however, that nothing in this section contained shall in any wise be construed to include any participant or sympathizer in any labor dispute.' The proviso is not here involved.

[ Footnote 2 ] Champlin Ref. Co. v. Corporation Commission, 286 U.S. 210, 242 , 243 S., 52 S.Ct. 559, 567, 568, 86 A.L.R. 403; Cline v. Frink Dairy Co., 274 U.S. 445, 458 , 47 S.Ct. 681, 685; Connally v. General Const. Co., 269 U.S. 385 , 391-393, 46 S.Ct. 126, 127, 128; Small Co. v. American Sugar Ref. Co., 267 U.S. 233, 239 , 45 S.Ct. 295, 297; United States v. Cohen Grocery Co., 255 U.S. 81 , 89-92, 41 S.Ct. 298, 300, 301, 14 A.L.R. 1045; Collins v. Kentucky, 234 U.S. 634, 638 , 34 S.Ct. 924, 925; International Harvester Co. v. Kentucky, 234 U.S. 216 , 221-223, 34 S.Ct. 853, 854, 855. Cf. People v. Belcastro, 356 Ill. 144, 190 N.E. 301, 92 A.L. R. 1223; People v. Licavoli, 264 Mich. 643, 250õn.W. 520.

[ Footnote 3 ] American dictionaries define the word as follows:

[ Footnote 4 ] See, e.g., Champlin Ref. Co. v. Corporation Commission, 286 U.S. 210, 242 , 243 S., 52 S.Ct. 559, 567, 568, 86 A.L.R. 403; Connally v. General Const. Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127; Nash v. United States, 229 U.S. 373 , 33 S.Ct. 780.

[ Footnote 5 ] Cf. Kans.Laws 1935, c. 161. Ill.Laws 1933, p. 489, Ill.Rev.Stat. 1937, c. 38, 578, held unconstitutional in People v. Belcastro, 356 Ill. 144, 190 N.E. 301, 92 A.L.R. 1223. Mich.Comp.Laws (Mason's Supp.1935) 17115-167, held unconstitutional in People v. Licavoli, 264 Mich. 643, 250 N.W. 520.

[325 U.S. 91, 92]   Mr. James F. Kemp, of Atlanta, Ga., for petitioners.

This case involves a shocking and revolting episode in law enforcement. Petitioner Screws was sheriff of Baker County, Georgia. He enlisted the assistance of petitioner Jones, a policeman, and petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of Georgia. The arrest was made late at night at Hall's home on a warrant charging Hall with theft of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house. As Hall alighted from the car at the court house square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the [325 U.S. 91, 93]   car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the court house yard into the jail and thrown upon the floor dying. An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall and had threatened to 'get' him.

The indictment charged that petitioners, acting under color of the laws of Georgia, 'willfully' caused Hall to be deprived of 'rights, privileges, or immunities secured or protected' to him by the Fourteenth Amendment-the right not to be deprived of life without due process of law; the right to be tried, upon the charge on which he was arrested, by due process of law and if found guilty to be punished in accordance with the laws of Georgia; that is to say that petitioners 'unlawfully and wrong- fully did assault, strike and beat the said Robert Hall about the head with human fists and a blackjack causing injuries' to Hall 'which were the proximate and immediate cause [325 U.S. 91, 94]   of his death.' A like charge was made in the conspiracy count.

The case was tried to a jury. 1 The court charged the jury that due process of law gave one charged with a crime the right to be tried by a jury and sentenced by a court. On the question of intent it charged that ' ... if these defendants, without its being necessary to make the arrest effectual or necessary to their own personal protection, beat this man, assaulted him or killed him while he was under arrest, then they would be acting illegally under color of law, as stated by this statute, and would be depriving the prisoner of certain constitutional rights guaranteed to him by the Constitution of the United States and consented to by the State of Georgia.'

The jury returned a verdict of guilty and a fine and imprisonment on each count was imposed. The Circuit Court of Appeals affirmed the judgment of conviction, one judge dissenting. 5 Cir., 140 F.2d 662. The case is here on a petition for a writ of certiorari which we granted because of the importance in the administration of th criminal laws of the questions presented. 322 U.S. 718 , 64 S.Ct. 946

I. We are met at the outset with the claim that 20 is unconstitutional, in so far as it makes criminal acts in violation of the due process clause of the Fourteenth Amendment. The argument runs as follows: It is true that this Act as construed in United States v. Classic, 313 U.S. 299, 328 , 61 S.Ct. 1031, 1044, was upheld in its application to certain ballot box frauds committed by state officials. But in that case the constitutional rights protected were the rights to vote [325 U.S. 91, 95]   specifically guaranteed by Art. I, 2 and 4 of the Constitution. Here there is no ascertainable standard of guilt. There have been conflicting views in the Court as to the proper construction of the due process clause. The majority have quite consistently construed it in broad general terms. Thus it was stated in Twining v. New Jersey, 211 U.S. 78, 101 , 29 S.Ct. 14, 20, that due process requires that 'no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law, and protect the citizen in his private right, and guard him against the arbitrary action of government.' In Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332, 90 A.L.R. 575, it was said that due process prevents state action which 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' The same standard was expressed in Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152, in terms of a 'scheme of ordered liberty.' And the same idea was recently phrased as follows: 'The phrase formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.' Betts v. Brady, 316 U.S. 455, 462 , 62 S.Ct. 1252, 1256.

It is said that the Act must be read as if it contained those broad and fluid definitions of due process and that if it is so read it provides no ascertainable standard of guilt. It is pointed out that in United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 , 41 S.Ct. 298, 300, 14 A.L.R. 1045, an Act of Congress was struck down, the enforcement of which would have been 'the exact equivalent of an effort to carry out a statute [325 U.S. 91, 96]   which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury.' In that case the act declared criminal was the making of 'any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.' 255 U.S. at page 86, 41 S.Ct. at page 299, 14 A.L.R. 1045. The Act contained no definition of an 'unjust or unreasonable rate' nor did it refer to any source where the measure of 'unjust or unreasonable' could be ascertained. In the instant case the decisions of the courts are, to be sure, a source of reference for ascertaining the specific content of the concept of due process. But even so the Act would incorporate by reference a large body of changing and uncertain law. That law is not always reducible to specific rules, is expressible only in general terms, and turns many times on the facts of a particular case. Accordingly, it is argued that such a body of legal principles lacks the basic specificity necessary for criminal statutes under our system of government. Congress did not define what it desired to punish but referred the citizen to a comprehensive law library in order to ascertain w at acts were prohibited. To enforce such a statute would be like sanctioning the practice of Caligula who 'published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it.' Suetonius, Lives of the Twelve Caesars, p. 278.

The serious character of that challenge to the constitutionality of the Act is emphasized if the customary standard of guilt for statutory crimes is taken. As we shall see specific intent is at times required. Holmes, The Common Law, p. 66 et seq. But the general rule was stated in Ellis v. United States, 206 U.S. 246, 257 , 27 S.Ct. 600, 602, 11 Ann.Cas. 589, as follows: 'If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.' And see Horning v. District of [325 U.S. 91, 97]   Columbia, 254 U.S. 135, 137 , 41 S.Ct. 53, 54; Nash v. United States, 229 U.S. 373, 377 , 33 S.Ct. 780, 781. Under that test a local law enforcement officer violates 20 and commits a federal offense for which he can be sent to the penitentiary if he does an act which some court later holds deprives a person of due process of law. And he is a criminal though his motive was pure and though his purpose was unrelated to the disregard of any constitutional guarantee. The treacherous ground on which state officials-police, prosecutors, legislators, and judges-would walk is indicated by the character and closeness of decisions of this Court interpreting the due process clause of the Fourteenth Amendment. A confession obtained by too long questioning ( Ashcraft v. Tennessee, 322 U.S. 143 , 64 S.Ct. 921); the enforcement of an ordinance requiring a license for the distribution of religious literature (Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146 A.L.R. 81); the denial of the assistance of counsel in certain types of cases (Cf. Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55, 84 A.L.R. 527, with Betts v. Brady, supra); the enforcement of certain types of anti-picketing statutes (Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736); the enforcement of state price control laws (Olsen v. Nebraska, 313 U.S. 236 , 61 S.Ct. 862, 133 A. L.R. 1500); the requirement that public school children salute the flag ( West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178, 147 A.L.R. 674)-these are illustrative of the kind of state action2 which might or might not be caught in the broad reaches of 20 dependent on the prevailing view of the Court as constituted when the case arose. Those who enforced local law today might not know for many months (and meanwhile could not find out) whether what they did deprived some one of due process of law. The enforcement of a criminal statute so construed would indeed cast [325 U.S. 91, 98]   law enforcement agencies loose at their own risk on a vast uncharted sea.

If such a construction is not necessary, it should be avoided. This Court has consistently favored that interpretation of legislation which supports its constitutionality. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 , 56 S.Ct. 466, 483; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 , 57 S.Ct. 615, 621, 108 A.L.R. 1352; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 351 , 352 S., 57 S.Ct. 816, 822, 823. That reason is impelling here so that if at all possible 20 may be allowed to serve its great purpose-the protection of the individual in his civil liberties.

Sec. 20 was enacted to enfor e the Fourteenth Amendment. 3 It derives4 from 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27.5 Senator Trumbull, chairman of the Senate Judiciary Committee which reported the bill, stated that its purpose was 'to protect all persons in the United States in their civil rights, and furnish the means of their vindication.' Cong. Globe, 39th Cong., 1st Sess., p. 211. In origin it was an antidiscrimination measure (as its language indicated), framed to protect negroes in their newly won rights. See Flack, The Adoption of the Fourteenth Amendment (1908), p. 21. It was [325 U.S. 91, 99]   amended by 17 of the Act of May 31, 1870, 16 Stat. 144, 18 U.S.C.A. 52, 6 and made applicable to 'any inhabitant of any State or Territory.' 7 The prohibition against the 'deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States' was introduced by the revisers in 1874. R.S. 5510, 18 U.S. C.A. 52. Those words were taken over from 1 of the Act of April 20, 1871, 17 Stat. 13 (the so-called Ku-Klux Act) which provided civil suits for redress of such wrongs. 8 See Cong. Rec., [325 U.S. 91, 100]   43d Cong., 1st Sess., p. 828. The 1874 revision was applicable to any person who under color of law, etc., 'subjects, or causes to be subjected' any inhabitant to the deprivation of any rights, etc. The requirement for a 'willful' violation was introduced by the draftsmen of the Criminal Code of 1909. Act of March 4, 1909, 35 Stat. 1092. And we are told 'willfully' was added to 20 in order to make the section 'less severe'. 43 Cong. Rec ., 60th Cong., 2d Sess., p. 3599.

We hesitate to say that when Congress sought to enforce the Fourteenth Amendment9 in this fashion it did a vain thing. We hesitate to conclude that for 80 years this effort of Congress, renewed several times, to protect the important rights of the individual guaranteed by the Fourteenth Amendment has been an idle gesture. Yet if the Act falls by reason of vagueness so far as due process of law is concerned, there would seem to be a similar lack of specificity when the privileges and immunities clause (Madden v. Kentucky, 309 U.S. 83 , 60 S.Ct. 406, 125 A.L.R. 1383) and the equal protection clause (Smith v. Texas, 311 U.S. 128 , 61 S.Ct. 164; Hill v. Texas, 316 U.S. 400 , 62 S.Ct. 1159) of the Fourteenth Amendment are involved. Only if no construction can save the Act from this claim of unconstitutionality are we willing to reach that result. We do not reach it, for we are of the view that if 20 is confined more narrowly than the lower courts confined it, it can be preserved as one of the sanctions to the great rights which the Fourteenth Amendment was designed to secure. [325 U.S. 91, 101]   II. We recently pointed out that 'willful' is a word 'of many meanings, its construction often being influenced by its context.' Spies v. United States, 317 U.S. 492, 497 , 63 S.Ct. 364, 367. At times, as the Court held in United States v. Murdock, 290 U.S. 389, 394 , 54 S.Ct. 223, 225, the word denotes an act which is intentional rather than accidental. And see United States v. Illinois Cent. R. Co., 303 U.S. 239 , 58 S.Ct. 533. But 'when used in a criminal statute, it generally means an act done with a bad purpose.' United States v. Murdock, 290 U.S. at page 394, 54 S.Ct. at page 225. And see Felton v. United States, 96 U.S. 699 ; Potter v. United States, 155 U.S. 438 , 15 S.Ct. 144; Spurr v. United States, 174 U.S. 728 , 19 S.Ct. 812; Hargrove v. United States, 5 Cir., 67 F. 820, 90 A.L.R. 1276. In that event something more is required than the doing of the act proscribed by the statute. Cf. United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301. An evil motive to accomplish that which the statute condemns becomes a constituent element of the crime. Spurr v. United States, supra, 174 U.S. at page 734, 19 S.Ct. at page 815; United States v. Murdock, supra, 290 U.S. at page 395, 54 S.Ct. at page 225. And that issue must be submitted to the jury under appropriate instructions. United States v. Ragen, 314 U.S. 513 524, 62 S.Ct. 374, 379.

An analysis of the cases in which 'willfully' has been held to connote more than an act which is voluntary or intentional would not prove helpful as each turns on its own peculiar facts. Those cases, however, make clear that if we construe 'willfully' in 20 as connoting a purpose to deprive a person of a specific constitutional right, we would introduce no innovation. The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. The constitutional vice in such a statute is the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning. [325 U.S. 91, 102]   See United States v. L. Cohen Grocery Co., supra. But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law. The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain. But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware. That was pointed out by Mr. Justice Brandeis speaking for the Court in Omaechevarria v. Idaho, 246 U.S. 343 , 38 S.Ct. 323. An Idaho statute made it a misdemeanor to graze sheep 'upon any range usually occupied by any cattle grower.' Rev. Codes Idaho 6872. The argument was that the statute was void for indefiniteness because it failed to provide for the ascertainment of boundaries of a 'range' or for determining what length of time was necessary to make a prior occupation a 'usual' one. The Court ruled that 'any danger to sheepmen which might otherwise arise from indefiniteness, is removed by section 6314 of Revised Codes, which provides that: 'In every crime or public offence there must exist a union, or joint operation, of act and intent, or criminal negligence." Id., 246 U.S. at page 348, 38 S.Ct. at page 325. A similar ruling was made in Hygrade Provision Co. v. Sherman, 266 U.S. 497 , 45 S.Ct. 141. The charge was that a criminal statute which regulated the sale of 'kosher' meat or products 'sanctioned by the orthodox Hebrew religious requirements', Penal Law N.Y. 435, subd. 4, was unconstitutional for want of any ascertainable standard of guilt. The Court speaking through Mr. Justice Sutherland stated, '... since the statutes require a specific intent to defraud in order to encounter their prohibitions, the hazard of prosecution which appellants fear loses whatever substantial foundation it might have in the absence of such a requirement.' 266 U.S. at pages 502, 503, 45 S.Ct. at page 143. In United States v. Ragen, supra, we took [325 U.S. 91, 103]   that course in a prosecution for willful evasion of a federal income tax where it was alleged that the defendant had deducted more than 'reasonable' allowances for salaries. By construing the statute to require proof of bad faith we avoided the serious question which the rule of United States v. L. Cohen Grocery Co., supra, might have presented. We think a like course is appropriate here.

Moreover, the history of 20 affords some support for that narrower construction. As we have seen, the word 'willfully' was not added to the Act until 1909. Prior to that time it may be that Congress intended that he who deprived a person of any right protected by the Constitution should be liable without more. That was the pattern of criminal legislation which has been sustained without any charge or proof of scienter. Shevlin- Carpenter Co. v. Minnesota, 218 U.S. 57 , 30 S.Ct. 663; United States v. Balint, supra. And the present Act in its original form would have been susceptible of the same interpretation apart from the equal protection clause of the Fourteenth Amendment, where 'purposeful discriminatory' action must be shown. Snowden v. Hughes, 321 U.S. 1, 8 , 9 S., 64 S.Ct. 397, 401, 402. But as we have seen, the word 'willfully' was added to make the section 'less severe'. We think the inference is permissible that its severity was to be lessened by making it applicable only where the requisite bad purpose was present, thus requiring specific intent not only where discrimination is claimed but in other situations as well. We repeat that the presence of a bad purpose or evil intent alone may not be sufficient. We do say that a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.

Once the section is given that construction, we think that the claim that the section lacks an ascertainable standard of guilt must fail. The constitutional requirement that a criminal statute be definite serves a high func- [325 U.S. 91, 104]   tion. It gives a person acting with reference to the statute fair warning that his conduct is within its prohibition. This requirement is met when a statute prohibits only 'willful' acts in the sense we have explained. One who does act with such specific intent is aware that what he does is precisely that which the statute forbids. He is under no necessity of guessing whether the statute applies to him (see Connally v. General Construction Co., 269 U.S. 385 , 46 S.Ct. 126) for he either knows or acts in reckless disregard of its prohibition of the deprivation of a defined constitutional or other federal right. See Gorin v. United States, 312 U.S. 19, 27 , 28 S., 61 S.Ct. 429, 433, 434. Nor is such an act beyond the understanding and comprehension of juries summoned to pass on them. The Act would then not become a trap for law enforcement agencies acting in good faith. 'A mind intent upon willful evasion is inconsistent with surprised innocence.' United States v. Ragen, supra, 314 U.S. at page 524, 62 S.Ct. at page 379.

It is said, however, that this construction of the Act will not save it from the infirmity of vagueness since neither a law enforcement official nor a trial judge can know with sufficient definiteness the range of rights that are constitutional. But that criticism is wide of the mark. For the specific intent required by the Act is an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them. Take the case of a local officer who persists in enforcing a type of ordinance which the Court has held invalid as violative of the guarantees of free speech or freedom of worship. Or a local official continues to select juries in manner which flies in the teeth of decisions of the Court. If those acts are done willfully, how can the officer possibly claim that he had no fair warning that his acts were prohibited by the statute? He violates the statute not merely because he has a bad purpose but because he acts in defiance of announced rules of law. He who defies a [325 U.S. 91, 105]   decision interpreting the Constitution knows precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did. Of course, willful conduct cannot make definite that which is undefined. But willful violators of constitutional requirements, which have been defined, certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. When they act willfully in the sense in which we use the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite. When they are convicted for so acting, they are not punished for violating an unknowable something.

The Act so construed has narrower range in all its applications than if it were interpreted in the manner urged by the government. But the only other alternative, if we are to avoid grave constitutional questions, is to construe it as applicable only to those acts which are clearly marked by the specific provisions of the Constitution as deprivations of constitutional rights, privileges, or immunities, and which are knowingly done within the rule of Ellis v. United States, supra. But as we have said that course would mean that all protection for violations of due process of law would drop out of the Act. We take the course which makes it possible to preserve the entire Act and save all parts of it from constitutional challenge. If Congress desires to give the Act wider scope, it may find ways of doing so. Moreover, here as in Apex Hosiery Co. v. Leader, 310 U.S. 469 , 60 S.Ct. 982, 128 A.L.R. 1044, we are dealing with a situation where the interpretation of the Act which we adopt does not preclude any state from punishing any act made criminal by its own laws. Indeed, the narrow construction which we have adopted more nearly preserves the traditional balance between the States and the national government in law enforcement than that which is urged upon us. [325 U.S. 91, 106]   United States v. Classic, supra, met the test we suggest. In that case we were dealing merely with the validity of an indictment, not with instructions to the jury. The indictment was sufficient since it charged a willful failure and refusal of the defendant-election officials to count the votes cast, by their alteration of the ballots and by their false certification of the number of votes cast for the respective candidates. 313 U.S. at pages 308, 309, 61 S.Ct. at pages 1034, 1035. The right so to vote is guaranteed by Art. I, 2 and 4 of the Constitution. Such a charge is adequate since he who alters ballots or without legal justification destroys them would be acting willfully in the sense in which 20 uses the term. The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees. Likewise, it is plain that basic to the concept of due process of law in a criminal case is a trial-a trial in a court of law, not a 'trial by ordeal.' Brown v. Mississippi, 297 U.S. 278, 285 , 56 S.Ct. 461, 465. It could hardly be doubted that they who 'under color of any law, statute, ordinance, regulation, or custom' act with that evil motive violate 20. Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him. And such a purpose need not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act. See Tot v. United States, 319 U.S. 463 , 63 S.Ct. 1241.

The difficulty here is that this question of intent was not submitted to the jury with the proper instructions. The court charged that petitioners acted illegally if they applied more force than was necessary to make the arrest effectual or to protect themselves from the prisoner's al- [325 U.S. 91, 107]   leged assault. But in view of our construction of the word 'willfully' the jury should have been further instructed that it was not sufficient that petitioners had a generally bad purpose. To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g. the right to be tried by a court rather than by ordeal. And in determining whether that requisite bad purpose was present the jury would be entitled to consider all the attendant circumstance-the malice of petitioners, the weapons used in the assault, its character and duration, the provocation if any, and the like.

It is true that no exception was taken to the trial court's charge. Normally we would under those circumstances not take note of the error. See Johnson v. United States, 318 U.S. 189, 200 , 63 S.Ct. 549, 555. But there are exceptions to that rule. United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391, 392; Clyatt v. United States, 197 U.S. 207, 221 , 222 S., 25 S.Ct. 429, 432, 433. And where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial. Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the standards of guilt which Congress has prescribed.

III. 1t is said, however, that petitioners did not act 'under color of any law' within the meaning of 20 of the Criminal Code. We disagree. We are of the view that petitioners acted under 'color' of law in making the arrest of Robert Hall and in assaulting him. They were officers of the law who made the arrest. By their own admissions they assaulted Hall in order to protect themselves and to keep their prisoner from escaping. It was their duty [325 U.S. 91, 108]   under Georgia law to make the arrest effective. Hence, their conduct comes within the statute.

Some of the arguments which have been advanced in support of the contrary conclusion suggest that the question under 20 is whether Congress has made it a federal offense for a state officer to violate the law of his State. But there is no warrant for treating the question in state law terms. The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under 'color of any law.' He who acts under 'color' of law may be a federal officer or a state officer. He may act under 'color' of federal law or of state law. The statute does not come into play merely because the federal law or the state law under which the officer purports to act is violated. It is applicable when and only when some one is deprived of a federal right by that action. The fact that it is also a violation of state law does not make it any the less a federal offense punishable as such. Nor does its punishment by federal authority encroach on state authority or relieve the state from its responsibility for punishing state offenses. 10  

We agree that when this statute is applied to the action of state officials, it should be construed so as to respect the proper balance between the States and the federal government in law enforcement. Violation of local law does not necessarily mean that federal rights have been invaded. The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the [325 U.S. 91, 109]   Constitution or laws of the United States. Cf. Logan v. United States, 144 U.S. 263 , 12 S.Ct. 617, dealing with assaults by federal officials. The Fourteenth Amendment did not alter the basic relations between the States and the national government. United States v. Harris, 106 U.S. 629 , 1 S.Ct. 601; In re Kemmler, 136 U.S. 436, 448 , 10 S.Ct. 930, 934. Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States. Jerome v. United States, 318 U.S. 101, 105 , 63 S.Ct. 483, 486. As stated in United States v. Cruikshank, 92 U.S. 542, 553 , 554 S., 'It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.' And see United States v. Fox, 95 U.S. 670 , 672. It is only state action of a 'particular character' that is prohibited by the Fourteenth Amendment and against which the Amendment authorizes Congress to afford relief. Civil Rights Cases, 109 U.S. 3, 11 , 13 S., 3 S.Ct. 18, 21, 23. Thus Congress in 20 of the Criminal Code did not undertake to make all torts of state officials federal crimes. It brought within 20 only specified acts done 'under color' of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States.

This section was before us in United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043, where we said: 'Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law.' In that case state election officials were charged with failure to count the votes as cast, alteration of the ballots, and false certification of the number of votes cast for the respective candidates. 313 U.S. at pages 308, 309, 61 S.Ct. at pages 1034, 1035. We stated that those acts of the defendants 'were committed in the course of [325 U.S. 91, 110]   their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election.' Id., 313 U.S. at pages 325, 326, 61 S.Ct. at pages 1042, 1043. In the present case, as we have said, the defendants were officers of the law who had made an arrest and who by their own admissions and to certify the result of the election.' themselves and to keep the prisoner from escaping, i.e. to make the arrest effective. That was a duty they had under Georgia law. United States v. Classic is, therefore, indistinguishable from this case so far as 'under color of' state law is concerned. In each officers of the State were performing official duties; in each the power which they were authorized to exercise was misused. We cannot draw a distinction between them unless we are to say that 20 is not applicable to police officers. But the broad sweep of its language leaves no room for such an exception.

It is said that we should abandon the holding of the Classic case. It is suggested that the present problem was not clearly in focus in that case and that its holding was ill-advised. A reading of the opinion makes plain that the question was squarely involved and squarely met. It followed the rule announced in Ex parte Commonwealth of Virginia, 100 U.S. 339 , 346, that a state judge who in violation of state law discriminated against negroes in the selection of juries violated the Act of March 1, 1875, 18 Stat. 336. It is true that that statute did not contain the words under 'color' of law. But the Court in deciding what was state action within the meaning of the Fourteenth Amendment held that it was immaterial that the state officer exceeded the limits of his authority. '... as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.' 100 U.S. at page 347. And see Commonwealth of Virginia v. Rives, [325 U.S. 91, 111]   100 U.S. 313 , 321. The Classic case recognized, without dissent, that the cont ary view would defeat the great purpose which 20 was designed to serve. Reference is made to statements11 of Senator Trumbull in his discussion of 2 of the Civil Rights Act of 1866, 14 Stat. 27, and to statements of Senator Sherman concerning the 1870 Act12 as supporting the conclusion that 'under color of any law' was designed to include only action taken by officials pursuant to state law. But those statements in their context are inconclusive on the precise problem involved in the Classic case and in the present case. We are not dealing here with a case where an officer not authorized to act nevertheless takes action. Here the state officers were authorized to make an arrest and to take such steps as were necessary to make the arrest effective. They acted without authority only in the sense that they used excessive force in making the arrest effective. It is clear that under 'color' of law means under 'pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it. If, as suggested, the statute was designed to embrace only action which the State in fact authorized, the words 'under color of any law' were hardly apt words to express the idea.

Nor are the decisions under 33 of the Judicial Code, 28 U.S.C. 76, 28 U.S.C.A. 76, in point. That section gives the right of removal to a federal court of any criminal prosecution begun in a state court against a revenue officer of the United States 'on account of any act done under color of his office or of any such (revenue) law.' The cases under it recognize that it is an 'exceptional' procedure which wrests from state courts the power to try offenses against [325 U.S. 91, 112]   their own laws. State of Maryland v. Soper (No. 1), 270 U.S. 9, 29 , 35 S., 46 S.Ct. 185, 189, 191; State of Colorado v. Symes, 286 U.S. 510, 518 , 52 S.Ct. 635, 637. Thus the requirements of the showing necessary for removal are strict. See State of Maryland v. Soper ( No. 2), 270 U.S. 36, 42 , 46 S.Ct. 192, 193, saying that acts 'necessary to make the enforcement effective' are done under 'color' of law. Hence those cases do not supply an authoritative guide to the problems under 20 which seeks to afford protection against officers who possess authority to act and who exercise their powers in such a way as to deprive a person of rights secured to him by the Constitution or laws of the United States. It is one thing to deprive state courts of their authority to enforce their own laws. It is quite another to emasculate an Act of Congress designed to secure individuals their constitutional rights by finely spun distinctions concerning the precise scope of the authority of officers of the law. Cf. Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064.

But beyond that is the problem of stare decisis. The construction given 20 in the Classic case formulated a rule of law which has become the basis of federal enforcement in this important field. The rule adopted in that case was formulated after mature consideration. It should be good for more than one day only. We do not have here a situation comparable to Mahnich v. Southern S.S. Co., 321 U.S. 96 , 64 S.Ct. 455, where we overruled a decision demonstrated to be a sport in the law and inconsistent with what preceded and what followed. The Classic case was not the product of hasty action or inadvertence. It was not out of line with the cases which preceded. It was designed to fashion the governing rule of law in this important field. We are not dealing with constitutional interpretations which throughout the history of the Court have wisely remained flexible and subject to frequent re-examination. The meaning which the Classic case gave to the phrase 'under color of any law involved only a construction of the statute. hence if it states a rule un- [325 U.S. 91, 113]   desirable in its consequences, Congress can change it. We add only to the instability and uncertainty of the law if we revise the meaning of 20 to meet the exigencies of each case coming before us.

The case comes here established in fact as a gross abuse of authority by state officers. Entrusted with the state's power and using it, without a warrant or with one of only doubtful legality1 they invaded a citizen's home, arrested him for alleged theft of a tire, forcibly took him in handcuffs to the courthouse yard, and there beat him to death. Previously they had threatened to kill him, fortified themselves at a near-by bar, and resisted the bartender's importunities not to carry out the arrest. Upon this and other evidence which overwhelmingly supports (140 F.2d at page 665) the verdict, together with instructions adequately [325 U.S. 91, 114]   covering an officer's right to use force, the jury found the petitioners guilty.

I. The verdict has shaped their position here. Their contention hardly disputes the facts on which it rests. 2 They do not come therefore as faithful state officers, innocent of crime. Justification has been foreclosed. Accordingly, their argument now admits the offense, but insists it was against the state alone, not the nation. So they have made their case in this Court. 3  

The defense is not pretty. Nor is it valid. By a long course of decision from Ex parte Commonwealth of Virginia, 100 U.S. 339 , to United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031 it has been re- [325 U.S. 91, 115]   jected. 6 The ground should not need ploughing again. It was cleared long ago and thoroughly. It has been kept clear, until the ancient doubt, laid in the beginning, was resurrected in the last stage of this case. The evidence has nullified any pretense that petitioners acted as individuals, about their personal though nefarious business. They used the power of official place in all that was done. The verdict has foreclosed semblance of any claim that only private matters, not touching official functions, were involved. Yet neither was the state's power, they say.

There is no third category. The Amendment and the legislation were not aimed at rightful state action. Abuse of state power was the target. Limits were put to state authority, and states were forbidden to pass them, by whatever agency. 7 It is too late now, if there were better reason than exists for doing so, to question that in these matters abuse binds the state and is its act, when done by [325 U.S. 91, 116]   one to whom it has given power to make the abuse effective to achieve the forbidden ends. Vague ideas of dual federalism,8 of ultra vires doctrine imported from private agency,9 and of want of finality in official action, 10 do not nullify what four years of civil strife secured and eighty years have verified. For it was abuse of basic civil and political rights, by states and their officials, that the Amendment and the enforcing legislation were adopted to uproot.

The danger was not merely legislative or judicial. Nor was it threatened only from the state's highest officials. It was abuse by whatever agency the state might invest with its power capable of inflicting the deprivation. In all its flux, time makes some things axiomatic. One has been that state officials who violate their oaths of office and flout [325 U.S. 91, 117]   the fundamental law are answerable to it when their misconduct brings upon them the penalty it authorizes and Congress has provided.

If the issues made by the parties themselves were allowed to govern, there would be no need to say more. At various stages petitioners have sought to show that they used no more force than was necessary, that there was no state action, and that the evidence was not sufficient to sustain the verdict and the judgment. These issues, in various formulations,11 have comprehended their case. All have been resolved against them without error. This should end the matter. [325 U.S. 91, 118]   II. But other and most important issues have been injected and made decisive to reverse the judgment. Petitioners have not denied that they acted 'willfully' within the mean ng of Section 20 or that they intended to do the acts which took their victim's liberty and life. In the trial court they claimed justification. But they were unable to prove it. The verdict, on overwhelming evidence, has concluded against them their denial of bad purpose and reckless disregard of rights. This is necessarily implied in the finding that excessive force was used. No complaint was made of the charge in any of these respects and no request for additional charges concerning them was offered. Nor, in the application for certiorari or the briefs, have they raised questions of the requisite criminal intent or of unconstitutional vagueness in the statute's definition of the crime. However, these issues have been bought forward, so far as the record discloses, first by the dissenting opinion in the Court of Appeals, then by inquiry at the argument and in the disposition here.

The story would be too long, to trace in more than outline the history of Section 20 and companion provisions, in particular Section 19, 12 with which it must be considered on any suggestion of fatal ambiguity. But this history cannot be ignored, unless we would risk throwing overboard what the nation's greatest internal conflict created and eight [325 U.S. 91, 119]   decades have confirmed, in protection of individual rights against impairment by the states.

The sections have stood for nearly eighty years. Nor has this been without attack for ambiguity. Together the two sections have repelled it. In 1915, one of this Court's greatest judges, speaking for it, summarily disposed of the suggestion that Section 19 is invalid: 'It is not open to question that this statute is constitutional. ... (It) dealt with Federal rights, and with all Federal rights, and protected them in the lump ....' United States v. Mosley, 238 U.S. 383, 386 , 387 S., 35 S.Ct. 904, 905. And in United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031, the Court with equal vigor reaffirmed the validity of both sections, against dissenting assault for fatal [325 U.S. 91, 120]   ambiguity in relation to the constitutional rights then in question. . these more recent pronouncements but reaffirmed earlier and repeated ones. The history should not require retelling. But old and established freedoms vanish when history is forgotten.

At first Section 20 secured only rights enumerated in the Civil Rights Act. The first ten years brought it, through broadening changes, to substantially its present form. Only the word 'willfully' has been added since then, a change of no materiality, for the statute implied it beforehand. 13 35 Stat. 1092. The most important change of the first decade replaced the specific enumeration of the Civil Rights Act with the present broad language covering 'the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.' R.S. 5510, 18 U.S.C.A. 52. This inclusive designation brought Section 20 into conformity with Section 19's original coverage of 'any right or privilege secured to him by the Constitution or laws of the United States.' Since then, under these generic designations, the two have been literally identical in the scope of the rights they secure. The slight difference in wording cannot be one of substance. 14 [325 U.S. 91, 121]   Throughout a long and varied course of application the sections have remained unimpaired on the score of vagueness in the crimes they denounce. From 1874 to today they have repelled all attacks purposed to invalidate them. None has succeeded. If time and uniform decision can give stability to statutes, these have acquired it.

Section 20 has not been much used, in direct application, until recently. There were however a number of early decisions. 15 Of late the section has been applied more frequently, in considerable variety of situation, against varied and vigorous attack. 16 In United States v. Classic, 313 U.S. at page 321, 61 S.Ct. at page 1040, as has been stated, this Court gave it clearcut sanction. The opinion expressly repudiated any idea that the section, or Section 19, is vitiated by ambiguity. Moreover, this was done in terms which leave no room to say that the decision was not focused upon that question. 17 True, application to Fourteenth Amendment [325 U.S. 91, 122]   rights was reserved because the question was raised for the first time in the Government's brief filed here. 313 U.S. at page 329, 61 S.Ct. at page 1044. But the statute was sustained in application to a vast range of rights secured by the Constitution, apart from the reserved segment, as the opinion's language and the single reservation itself attest. The ruling, thus broad, cannot have been inadvertent. For it was repeated concerning both sections, broadly, forcefully, and upon citation of long-established authority. And this was done in response to a vigorous dissent which made the most of the point of vagueness. 18 The point was flatly, and deliberately, rejected. The Court cannot have been blinded by other issues to the import of this one.

The Classic decision thus cannot be put aside in this case. Nor can it be demonstrated that the rights secured by the Fourteenth Amendment are more numerous or more dubious than the aggregate encompassed by other [325 U.S. 91, 123]   constitutional provisions. Certainly 'the equal protection of the laws,' guaranteed by the Amendment, is not more vague and indefinite than many rights protected by other commands. 19 The same thing is true of 'the privileges or immunities of citizens of the United States.' The Fifth Amendment contains a due process clause as broad in its terms restricting national power as the Fourteenth is of state power. 20 If Section 20 (with Section 19) is valid in general coverage of other constitutional rights, it cannot be void in the less sweeping application to Fourteenth Amendment rights. If it is valid to assure the rights 'plainly and directly' secured by other provisions, it is equal y valid to protect those 'plainly and directly' secured by the Fourteenth Amendment, including the expressly guaranteed rights not to be deprived of life, liberty or property without due process of law. If in fact there could be any difference among the various rights protected, in view of the history it would be that the section applies more clearly to Fourteenth Amendment rights than to others. Its phrases 'are all phrases of large generalities. But they are not generalities of unillumined vagueness; they are generalities circumscribed by history and appropriate to the largeness of the problems of government with which they were concerned.' Malinski v. People of State of New York, 324 U.S. 401 , 65 S.Ct. 781, 787, concurring opinion.

Historically, the section's function and purpose have been to secure rights given by the Amendment. From the Amendment's adoption until 1874, it was Fourteenth Amendment legislation. Surely when in that year the section was expanded to include other rights these were [325 U.S. 91, 124]   not dropped out. By giving the citizen additional security in the exercise of his voting and other political rights, which was the section's effect, unless the Classic case falls, Congress did not take from him the protection it previously afforded (wholly apart from the prohibition of different penalties)21 against deprivation of such rights on account of race, color or previous condition of servitude, or repeal the prior safeguard of civil rights.

To strike from the statute the rights secured by the Fourteenth Amendment, but at the same time to leave within its coverage the vast area bounded by other constitutional provisions, would contradict both reason and history. No logic but one which nullifies the historic foundations of the Amendment and the section could support such an emasculation. There should be no judicial hack work cutting out some of the great rights the Amendment secures but leaving in others. There can be none excising all protected by the Amendment, but leaving [325 U.S. 91, 125]   every other given by the Constitution intact under the statute's aegis.

All that has been said of Section 20 applies with equal force to Section 19. It had an earlier more litigious history, firmly establishing its validity. 22 It also has received recent ap- [325 U.S. 91, 126]   plication,23 without question for ambiguity except in the Classic case, which nevertheless gave it equal sanction with its substantive counterpart.

Separately, and often together in application, Sections 19 and 20 have been woven into our fundamental and statutory law. They have place among our more permanent legal achievements. They have safeguarded many rights and privileges apart from political ones. Among those buttressed, either by direct application or through the general conspiracy statute, Section 37, 18 U.S.C. 88, 18 U.S.C.A. 88,24 are the rights to a fair trial, including freedom from sham trials; to be free from arrest and detention by methods constitutionally forbidden and from extortion of property by such methods; rom extortion of confessions; from mob action incited or shared by state officers; from failure to furnish police protection on proper occasion and demand; from interference with the free exercise of religion, freedom of the press, freedom of speech and assembly; 25 and [325 U.S. 91, 127]   the necessary import of the decisions is that the right to be free from deprivation of life itself, without due process of law, that is, through abuse of state power by state officials, is as fully protected as other rights so secured.

So much experience cannot be swept aside, or its teaching annulled, without overthrowing a great, and a firmly established, constitutional tradition. Nor has the feared welter of uncertainty arisen. Defendants have attacked the sections, or their application, often and strenuously. Seldom has complaint been made that they are too vague and uncertain. Objections have centered principally about 'state action,' including 'color of law' and failure by inaction to discharge official duty, cf. Catlette v. United States, 4 Cir., 132 F.2d 902, and about the strength of federal power to reach particular abuses. 26 More rarely they have touched other matters, such as the limiting effect of official privilege27 and, in occasional instances, mens rea. 28   [325 U.S. 91, 128]   In all this wealth of attack accused officials have little used the shield of ambiguity. The omission, like the Court's rejection in the Classic case, cannot have been inadvertent. There are valid reasons for it, apart from the old teaching that the matter has been foreclosed.

Moreover, statutory specificity has two purposes, to give due notice that an act has been made criminal before it is done and to inform one accused of the nature of the offense charged, so that he may adequately prepare and make his defense. More than this certainly the Constitution does not require. Cf. Amend. VI. All difficulty on the latter score vanishes, under Section 20, with the indictment's particularization of the rights infringed and the acts infringing them. If it is not sufficient in either respect, in these as in other cases the motion to quash or one for a bill of particulars is at the defendant's disposal. The decided cases demonstrate that accused persons have had little or no difficulty to ascertain the rights they have been charged with transgressing or the acts of transgression. 29 So it was with the defendants in this case. They were not puzzled to know for what they were indicted, as their proof and their defense upon the law conclusively show. They simply misconceived that the victim had no federal rights and that what they had done was not a crime within the federal power to penalize. 30 That kind of error relieves no one from penalty. [325 U.S. 91, 129]   In the other aspect of specificity, two answers, apart from experience, suffice. One is that Section 20, and Section 19, are no more general and vague, Fourteenth Amendment rights included, than other criminal statutes commonly enforced against this objection. The Sherman Act is the most obvious illustration. 31  

Generally state officials know something of the individual's basic legal rights. If they do not, they should, for they assume that duty when they assume their office. Ignorance of the law is no excuse for men in general. It is less an excuse for men whose special duty is to apply it, and therefore to know and observe it. If their knowledge is not comprehensive, state officials know or should know when they pass the limits of their authority, so far at any rate that their action exceeds honest error of judgment and amounts to abuse of their office and its function. When they enter such a domain in dealing with the citi en's rights, they should do so at their peril, whether that [325 U.S. 91, 130]   be created by state or federal law. For their sworn oath and their first duty are to uphold the Constitution, then only the law of the state which too is bound by the charter. Since the statute, as I think, condemns only something more than error of judgment, made in honest effort at once to apply and to follow the law, cf. United States v. Murdock, 290 U.S. 389 , 54 S.Ct. 223, officials who violate it must act in intentional or reckless disregard of individual rights and cannot be ignorant that they do great wrong. 32 This being true, they must be taken to act at peril of incurring the penalty placed upon such conduct by the federal law, as they do of that the state imposes.

But, it is said, a penumbra of rights may be involved, which none can know until decision has been made and infraction may occur before it is had. It seems doubtful this could be true in any case involving the abuse of official function which the statute requires and, if it could, that one guilty of such an abuse should have immunity for that reason. Furthermore, the doubtful character of the [325 U.S. 91, 131]   right infringed could give reason at the most to invalidate the particular charge, not for outlawing the statute or narrowly restricting its application in advance of compelling occasion.

III. Two implicit but highly important considerations must be noticed more definitely. One is the fear grounded in concern for possible maladjustment of federal-state relations if this and like convictions are sustained. Enough has been said to show that the f ar is not well grounded. The same fear was expressed, by some in exaggerated and [325 U.S. 91, 132]   highly emotional terms, when Section 2 of the Civil Rights Act, the antecedent of Section 20, was under debate in Congress. 33 The history of the legislation's enforcement gives it no support. The fear was not realized in later experience. Eighty years should be enough to remove any remaining vestige. The volume of prosecutions and convictions has been small, in view of the importance of the subject matter and the length of time the statutes have been in force. There are reasons for this, apart from self-restraint of federal prosecuting officials.

One lies in the character of the criminal act and the intent which must be proved. A strong case must be made to show abuse of official function, and therefore to secure indictment or conviction. Trial must be 'by an impartial jury of the State and district wherein the crime shall have been committed.' Const., Amend. VI; cf. Art. III, 2. For all practical purposes this means within the state of which the accused is an officer. Citizens of the state have not been, and will not be, ready to indict or convict their local officers on groundless charges or in doubtful cases. The sections can be applied effectively only when twelve of them concur in a verdict which accords with the prosecuting official's belief that the accused has violated another's fundamental rights. A federal official therefore faces both a delicate and a difficult task when he undertakes to charge and try a state officer under the terms of Sections 19 and 20. The restraint which has been shown is as much enforced by these limitations as it has been voluntary. [325 U.S. 91, 133]   These are the reasons why prosecution has not been frequent, has been brought only in cases of gross abuse, and therefore has produced no grave or substantial problem of interference by federal authority in state affairs. But if the problem in this phase of the case were more serious than it has been or is likely to be, the result legally could not be to give state officials immunity from the obligations and liabilities the Amendment and its supporting legislation have imposed. For the verdict of the struggle which brought about adoption of the Amendment was to the contrary.

Suffice it to say that if these ideas did not pass from the American scene once and for all, as I think they did, upon adoption of the Amendment without more, they have long since done so. Violation of state law there may be. But from this no immunity to federal authority can arise where any part of the Constitution has made it supreme. To the Constitution state officials and the states themselves owe first obligation. The federal power lacks no strength to reach their malfeasance in office when it infringes constituti nal rights. If that is a great power, it is one generated by the Constitution and the Amend- [325 U.S. 91, 134]   ments, to which the states have assented and their officials owe prime allegiance. 34  

I dissent. Robert Hall, a Negro citizen, has been deprived not only of the right to be tried by a court rather than by ordeal. He has been deprived of the right of life itself. That right belonged to him not because he was a Negro or a member of any particular race or creed. That right was his because he was an American citizen, because [325 U.S. 91, 135]   he was a human being. As such, he was entitled to all the respect and fair treatment that befits the dignity of man, a dignity that is recognized and guaranteed by the Constitution. Yet not even the semblance of due process has been accorded him. He has been cruelly and unjustifiably beaten to death by local police officers acting under color of authority derived from the state. It is difficult to believe that such an obvious and necessary right is indefinitely guaranteed by the Constitution or is foreign to the knowledge of local police officers so as to cast any reasonable doubt on the conviction under Section 20 of the Criminal Code of the perpetrators of this 'shocking and revolting episode in law enforcement.'

A grave constitutional issue, however, is said to lurk in the alleged indefiniteness of the crime outlawed by Section 20. The rights, privileges and immunities secured or protected by the Constitution or laws of the United States are claimed to be so uncertain and flexible, dependent upon changeable legal concepts, as to leave a state official confused and ignorant as to what actions of his might run afoul of the law. The statute, it is concluded, must be set aside for vagueness. [325 U.S. 91, 136]   It is axiomatic, of course, that a criminal statute must give a clear and unmistakable war ing as to the acts which will subject one to criminal punishment. And courts are without power to supply that which Congress has left vague. But this salutary principle does not mean that if a statute is vague as to certain criminal acts but definite as to others the entire statute must fall. Nor does it mean that in the first case involving the statute to come before us we must delineate all the prohibited acts that are obscure and all those that are explicit.

Common sense gives an affirmative answer to that problem. The reference in Section 20 to rights protected by the Constitution is manifest and simple. At the same time, the right not to be deprived of life without due process of law is distinctly and lucidly protected by the Fourteenth Amendment. There is nothing vague or indefinite in these references to this most basic of all human rights. Knowledge of a comprehensive law library is unnecessary for officers of the law to know that the right to murder [325 U.S. 91, 137]   individuals in the course of their duties is unrecognized in this nation. No appreciable amount of intelligence or conjecture on the part of the lowliest state official is needed for him to realize that fact; nor should it surprise him to find out that the Constitution protects persons from his reckless disregard of human life and that statutes punish him therefor. To subject a state official to punishment under Section 20 for such acts is not to penalize him without fair and definite warning. Rather it is to uphold elementary standards of decency and to make American principles of law and our constitutional guarantees mean something more than pious rhetoric.

It is an illusion to say that the real issue in this case is the alleged failure of Section 20 fully to warn the state officials that their actions were illegal. The Constitution, Section 20 and their own consciences told them that. They knew that they lacked any mandate or authority to take human life unnecessarily or without due process of law in the course of their duties. They knew that their excessive and abusive [325 U.S. 91, 138]   use of authority would only subvert the ends of j stice. The significant question, rather, is whether law enforcement officers and those entrusted with authority shall be allowed to violate with impunity the clear constitutional rights of the inarticulate and the friendless. Too often unpopular minorities, such as Negroes, are unable to find effective refuge from the cruelties of bigoted and ruthless authority. States are undoubtedly capable of punishing their officers who commit such outrages. But where, as here, the states are unwilling for some reason to prosecute such crimes the federal government must step in unless constitutional guarantees are to become atrophied.

Three law enforcement officers of Georgia, a county sheriff, a special deputy and a city policeman, arrested a young Negro charged with a local crime, that of stealing a tire. While he was in their custody and handcuffed, they so severely beat the lad that he died. This brutal misconduct rendered these lawless law officers guilty of manslaughter, if not of murder, under Georgia law. Instead of leaving this misdeed to vindication by Georgia law, the United States deflected Georgia's responsibility by instituting a federal prosecution. But this was a criminal homicide only under Georgia law. The United States could not prosecute the petitioners for taking life. In- [325 U.S. 91, 139]   stead, a prosecution was brought, and the conviction now under review was obtained, under 20 of the Criminal Code, 18 U.S.C. 52, 18 U.S.C.A. 52. Section 20, originating in 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, was put on the statute books on May 31, 1870, but for all practical purposes it has remained a dead letter all these years. This section provides that 'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects ... any inhabitant of any State ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States ... shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both.' Under 37 of the Criminal Code, 18 U.S. C. 88, 18 U.S.C.A. 88, a conspiracy to commit any federal offense is punishable by imprisonment for two years. The theory of this prosecution is that one charged with crime is entitled to due process of law and that that includes the right to an orderly trial of which the petitioners deprived the Negro.

I. By the Thirteenth Amendment slavery was abolished. In order to secure equality of treatment for the emancipated, the Fourteenth Amendment was adopted at the [325 U.S. 91, 140]   same time. To be sure, the latter Amendment has not been confined to instances of discrimination because of race or color. Undoubtedly, however, the necessary protection of the new freedmen was the most powerful impulse behind he Fourteenth Amendment. The vital part of that Amendment, Section 1, reads as follows: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

Accordingly, Congress passed various measures for its enforcement. It is familiar history that much of this legislation was born of that vengeful spirit which to no small degree envenomed the Reconstruction era. Legislative respect for constitutional limitations was not at its height and Congress passed laws clearly unconstitutional. See Civil Rights Cases, 109 U.S. 3 , 3 S.Ct. 18. One of the laws of this period was the Act of May 31, 1870, 16 Stat. 140. In its [325 U.S. 91, 141]   present form, as 20, it is now here for the first time on full consideration as to its meaning and its constitutionality, unembarrassed by preoccupation both on the part of counsel and court with the more compelling issue of the power of Congress to control state procedure for the election of federal officers. If 20 were read as other legislation is read, by giving it the meaning which its language in its proper setting naturally and spontaneously yields, it is difficult to believe that there would be real doubt about the proper construction. The unstrained significance of the words chosen by Congress, the disclosed purpose for which they were chosen and to which they were limited, the always relevant implications of our federal system especially in the distribution of power and responsibility for the enforcement of the criminal law as between the States and the National Government, all converge to make plain what conduct Congress outlawed by the Act of 1870 and what impliedly it did not.

The Fourteenth Amendment prohibited a State from so acting as to deprive persons of new federal rights defined by it. Section 5 of the Amendment specifically authorized enabling legislation to enforce that prohibition. Since a State can act only through its officers, Congress provided for the prosecution of any officer who deprives others of their guaranteed rights and denied such an officer the right to defend by claiming the authority of the State for his action. In short, Congress said that no State can empower an officer to commit acts which the Constitution forbade the State from authorizing, whether such unauthorized command be given for the State by its legislative or judicial voice, or by a custom contradicting the written law. See Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369 , 60 S.Ct. 968, 972. The present prosecution is not based on an officer's claim that that for which the United States seeks his punishment was commanded or authorized by the law of his State. On the contrary, [325 U.S. 91, 142]   the present prosecution is based on the theory that Congress made it a federal offense for a State officer to violate the explicit law of his State. We are asked to construe legislation which was intended to effe tuate prohibitions against States for defiance of the Constitution, to be equally applicable where a State duly obeys the Constitution, but an officer flouts State law and is unquestionably subject to punishment by the State for his disobedience.

Indeed, we have the weightiest evidence to indicate that they rejected that which now, after seventy-five years, the Government urges. Section 20 of the Criminal Code derived from 2 of the Civil Rights Act of 1866, 14 Stat. 27. During the debate on that section, Senator Trumbull, the Chairman of the Senate Judiciary Committee, answered fears concerning the loose inclusiveness of the phrase 'color of law'. In particular, opponents of the Act were troubled lest it would make criminals of State judges and officials for carrying out their legal duties. Senator Trumbull agreed that they would be guilty if they consciously helped to enforce discriminatory State [325 U.S. 91, 143]   legislation. Federal law, replied Senator Trumbull, was directed against those, and only against those, who were not punishable by State law precisely because they acted in obedience to unconstitutional State law and by State law justified their action. Said Senator Trumbull, 'If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have anything to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against under color of State laws because he is colored, then it becomes necessary to interfere for his protection.' Cong.Globe, 39th Cong., 1st Sess., p. 1758. And this language applies equally to 17 of the Act of May 31, 1870, 16 Stat. 140, 144 (now 20 of the Criminal Code) which re-enacted the Civil Rights Act.

That this legislation was confined to attempted deprivations of federal rights by State law and was not extended to breaches of State law by its officials, is likewise confirmed by observations of Senator Sherman, another leading Reconstruction statesman. When asked about the applicability of the 1870 Act to a Negro's right to vote when State law provided for that right, Senator Sherman replied, 'That is not the case with which we are dealing. I intend to propose an amendment to present a question of that kind. This bill only proposes to deal with offenses committed by officers or persons under color of existing State law, under color of existing State constitutions. No man could be convicted under this bill reported by the Judiciary Committee unless the denial of the right to vote was done under color or pretense of State regulation. The whole bill shows that. My honorable friend from California has not read this bill with his usual care if he does not see that that runs through the whole of the provisions of the first and second sections of the bill which [325 U.S. 91, 144]   simply punish officers as well as persons for discrimination under color of State laws or constitutions; and so it provides all the way through.' Cong.Globe, 41st Cong., 2d Sess., p. 3663. The debates in Congress are barren of any indication that the supporters of the legislation now before us had the remotest notion of autho izing the National Government to prosecute State officers for conduct which their State had made a State offense where the settled custom of the State did not run counter to formulated law.

Were it otherwise it would indeed be surprising. It was natural to give the shelter of the Constitution to those basic human rights for the vindication of which the successful conduct of the Civil War was the end of a long process. And the extension of federal authority so as to guard against evasion by any State of these newly created federal rights was an obvious corollary. But to attribute to Congress the making overnight of a revolutionary change in the balance of the political relations between the National Government and the States without reason, is a very different thing. And to have provided for the National Government to take over the administration of criminal justice from the States to the extent of making every lawless act of the policeman on the beat or in the station house, whether by way of third degree or the illegal ransacking for evidence in a man's house (see Gouled v. United States, 255 U.S. 298 , 41 S.Ct. 261; Byars v. United States, 273 U.S. 28 , 47 S.Ct. 248; Brown v. Mississippi, 297 U.S. 278 , 56 S.Ct. 461; Chambers v. Florida, 309 U.S. 227 , 60 S.Ct. 472), a federal offense, would have constituted a revolutionary break with the past overnight. The desire for such a dislocation in our federal system plainly was not contemplated by the Lyman Trumbulls and the John Shermans, and not even by the Thaddeus Stevenses.

Regard for maintaining the delicate balance 'between the judicial tribunals of the Union and of the states' in [325 U.S. 91, 145]   the enforcement of the criminal law has informed this Court, as it has influenced Congress, 'in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.' Ex parte Royall, 117 U.S. 241, 251 , 6 S.Ct. 734, 740. Observance of this basic principle under our system of Government has led this Court to abstain, even under more tempting circumstances than those now here, from needless extension of federal criminal authority into matters that normally are of state concern and for which the States had best be charged with responsibility.

We have reference to 33 of the Judicial Code, as amended, 28 U.S.C . 76, 28 U.S.C.A. 76. That provision gives the right of removal to a federal court of any criminal prosecution begun in a State court against a revenue officer of the United States 'on account of any act done under color of his office or of any such (revenue) law.' Where a state prosecution for manslaughter is resisted by the claim that what was done was justifiably done by a United States officer one would suppose that this Court would be alert to construe very broadly 'under color of his office or of any such law' in order to avoid the hazards of trial, whether through conscious or unconscious discrimination or hostility, of a United States officer accused of homicide and to assure him a trial in a presumably more impartial federal court. But this Court long ago indicated that misuse of federal authority does not come within the statute's protection. State of Tennessee v. Davis, 100 U.S. 257, 261 , 262 S.. More recently, this Court in a series of cases unanimously insisted that a petition for removal must show with particularity that the offense for which the State is prosecuting resulted from a discharge of federal duty. 'It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and [325 U.S. 91, 146]   he must by direct averment exclude the possibility that it was based on acts or conduct of his, not justified by his federal duty. ... The defense he is to make is that of his immunity of punishment by the st te, because what he did was justified by his duty under the federal law, and because he did nothing else on which the prosecution could be based.' State of Maryland v. Soper (No. 1), 270 U.S. 9, 33 , 46 S.Ct. 185, 190. And see State of Maryland v. Soper (No. 2), 270 U.S. 36 , 46 S. Ct. 192; State of Maryland v. Soper (No. 3), 270 U.S. 44 , 46 S.Ct. 194; State of Colorado v. Symes, 286 U.S. 510 , 52 S.Ct. 635. To the suggestion that such a limited construction of the removal statute enacted for the protection of the United States officers would restrict its effectiveness, the answer was that if Congress chose to afford even greater protection and to withdraw from the State the right and duty to enforce their criminal law in their own courts, it should express its desire more specifically. State of Maryland v. Soper ( No. 2), 270 U.S. 36, 42 , 44 S., 46 S.Ct. 192, 193, 194. That answer should be binding in the situation now before us.

Only two reported cases considered 20 before United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031. In United States v. Bun- [325 U.S. 91, 147]   tin, C.C., 10 F. 730, a teacher, in reliance on a State statute, refused admittance to a colored child, while in United States v. Stone, D.C., 188 F. 836, election supervisors who acted under a Maryland election law were held to act 'under color of law'. In neither case was there a patent violation of State law but rather an attempt at justification under State law. United States v. Classic, supra, is the only decision that looks the other way. In that case primary election officials were held to have acted 'under color of law' even though the acts complained of as a federal offense were likewise condemned by Louisiana law. The truth of the matter is that the focus of attention in the Classic case was not our present problem, but was the relation of primaries to the protection of the electoral process under the United States Constitution. The views in the Classic case thus reached ought not to stand in the way of a decision on the merits of a question which has now for the first time been fully explored and its implications for the workings of our federal system have been adequately revealed.

It was assumed quite needlessly in the Classic case that the scope of 20 was co-extensive with the Fourteenth Amendment. Because the weight of the case was elsewhere, we did not pursue the difference between the power granted to Congress by that Amendment to bar 'any State' from depriving persons of the newly created constitutional rights and the limited extent to which Congress exercised that power, in what is now 20, by making it an offense for one acting 'under color of any law' to deprive another of such constitutional rights. It may well be that Congress could, within the bounds of the Fourteenth Amendment, treat action taken by a State official even though in defiance of State law and not condoned by ultimate State authority as the action of 'a State'. It has never been satisfactorily explained how a State can be said to deprive a person of liberty or property without [325 U.S. 91, 148]   due process of law hen the foundation of the claim is that a minor official has disobeyed the authentic command of his State. See Raymond v. Chicago Union Traction Co., 207 U.S. 20, 40 , 41 S., 28 S.Ct. 7, 14, 12 Ann.Cas. 757. Although action taken under such circumstances has been deemed to be deprivation by a 'State' of rights guaranteed by the Fourteenth Amendment for purposes of federal jurisdiction, the doctrine has had a fluctuating and dubious history. Compare Barney v. City of New York, 193 U.S. 430 , 24 S.Ct. 502, with Raymond v. Chicago Union Traction Co., supra; Memphis v. Cumberland Telephone & Telegraph Co., 218 U.S. 624 , 31 S.Ct. 115, with Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 , 33 S.Ct. 312. Barney v. City of New York, supra, which ruled otherwise, although questioned, has never been overruled. See, for instance, Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 246 , 247 S., 52 S.Ct. 133, 136, and Snowden v. Hughes, 321 U.S. 1, 13 , 64 S.Ct. 397, 403.1

But assuming unreservedly that conduct such as that now before us, perpetrated by State officers in flagrant defiance of State law, may be attributed to the State under the Fourteenth Amendment, this does not make it action under 'color of any law.' Section 20 is much narrower than the power of Congress. Even though Congress might have swept within the federal criminal law any action that could be deemed within the vast reach of the Fourteenth Amendment, Congress did not do so. The presuppositions of our federal system, the pronouncements of the statesmen who shaped this legislation, and the normal meaning of language powerfully counsel against attributing to Congress intrusion into the sphere of criminal law tradition- [325 U.S. 91, 149]   ally and naturally reserved for the States alone. When due account is taken of the considerations that have heretofore controlled the political and legal relations between the States and the National Government, there is not the slightest warrant in the reason of things for torturing language plainly designed for nullifying a claim of acting under a State law that conflicts with the Constitution so as to apply to situations where State law is in conformity with the Constitution and local misconduct is in undisputed violation of that State law. In the absence of clear direction by Congress we should leave to the States the enforcement of their criminal law, and not relieve States of the responsibility for vindicating wrongdoing that is essentially local or weaken the habits of local law enforcement by tempting reliance on federal authority for an occasional unpleasant task of local enforcement.

Since the majority of the Court do not share this conviction that the action of the Georgia peace officers was not perpetrated under color of law, we, too, must consider the constitutionality of 20. All but two members of the Court apparently agree that in so far as 20 purports to subject men to punishment for crime it fails to define what conduct is made criminal. As misuse of the criminal machinery is one of the most potent and familiar instruments of arbitrary government, proper regard for the rational requirement of definiteness in criminal statutes is basic to civil liberties. As such it is included in the constitutional guaranty of due process of law. But four [325 U.S. 91, 150]   members of the Court are of the opinion that this plain constitutional principle of definiteness in criminal statutes may be replaced by an elaborate scheme of constitutional exegesis whereby that which Congress has not defined the courts can define from time to time, with varying and conflicting definiteness in the decisions, and that, in any event, an undefined range of conduct may become sufficiently definite if only such undefined conduct is committed 'willfully'.

To suggest that the 'right' deprivation of which is made criminal by 20 'has been made specific either by the express terms of the Constitution ... or by decisions interpreting (it)' hardly adds definiteness beyond that of the statute's own terms. What provision is to be deemed 'specific' 'by the express terms of the Constitution' and what not 'specific'? If the First Amendment safeguarding free speech be a 'specific' provision what about the Fourth? 'All unreasonable searches and seizures and absolutely forbidden by the Fourth Amendment.' Nathanson v. United States, 290 U.S. 41, 46 , 54 S.Ct. 11, 13. Surely each is among the 'rights, privileges, or immunities secured or protected by the Constitution', deprivation of which is a crime under 20. In any event, what are the criteria by which to determine what express provisions of the Constitution are 'specific' and what provisions are not 'specific'? And if the terms of 20 in and of themselves are lacking in sufficient definiteness for a criminal statute, restriction within the framework of 'decisions interpret- [325 U.S. 91, 151]   ing' the Constitution cannot show the necessary definiteness. The illustrations given in the Court's opinion underline the inescapable vagueness due to the doubts and fluctuating character of decisions interpreting the Constitution.

Under the construction proposed for 20, in order for a jury to convict, it would be necessary 'to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g. the right to be tried by a court rather than by ordeal.' There is no question that Congress could provide for a penalty against deprivation by state officials acting 'under color of any law' of 'the right to be tried by a court rather than by ordeal.' But we cannot restrict the problem raised by 20 to the validity of penalizing a deprivation of this specific constitutional right. We are dealing with the reach of the statute, for Congress has not particularized as the Court now particularizes. Such transforming interpolation is not interpretation. And that is recognized by the sentence just quoted, namely, that the jury in order to convict under 20 must find that an accused 'had the purpose to deprive (another) of a constitutional right', giving this specific constitutional right as 'e.g.,' by way of illustration. Hen e a judge would have to define to the jury what the constitutional rights are deprivation of which is prohibited by 20. If that is a legal question as to which [325 U.S. 91, 152]   the jury must take instruction from the court, at least the trial court must be possessed of the means of knowing with sufficient definiteness the range of 'rights' that are 'constitutional'. The court can hardly be helped out in determining that legal question by leaving it to the jury to decide whether the act was 'willfully' committed.

It cannot be too often emphasized that as basic a difference as any between our notions of law and those of legal systems not founded on Anglo- American conceptions of liberty is that crimes must be defined by the legislature. The legislature does not meet this requirement by issuing a blank check to courts for their retrospective finding that some act done in the past comes within the contingencies and conflicts that inhere in ascertaining the content of the Fourteenth Amendment by 'the gradual process of [325 U.S. 91, 153]   judicial inclusion and exclusion.' Davidson v. New Orleans, 96 U.S. 97 , 104. Therefore, to subject to criminal punishment conduct that the court may eventually find to have been within the scope or the limitations of a legal doctrine underlying a decision is to satisfy the vital requirement for definiteness through an appearance of definiteness in the process of constitutional adjudication which every student of law knows not to comport with actuality. What the Constitution requires is a definiteness defined by the legislature, not one argumentatively spelled out through the judicial process which, precisely because it is a process can not avoid incompleteness. A definiteness which requires so much sublety to expound is hardly definite.

In the early law an undesired event attributable to a particular person was punished regardless of the state of mind of the actor. The rational development of criminal liability added a mental requirement for criminal culpability, except in a limited class of c ses not here relevant. See United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301. That req- [325 U.S. 91, 154]   uisite mental ingredient is expressed in various forms in criminal statutes, of which the word 'willfully' is one of the most common. When a criminal statute prohibits something from being 'willfully' done, 'willfully' never defines the physical conduct or the result the bringing of which to pass is proscribed. 'Willfully' merely adds a certain state of mind as a prerequisite to criminal responsibility for the otherwise proscribed act. If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening (see International Harvester Co. v. Kentucky, 234 U.S. 216 , 34 S.Ct. 853; Collins v. Kentucky, 234 U.S. 634 , 34 S. Ct. 924; United States v. L. Cohen Grocery Co., 255 U.S. 81 , 41 S.Ct. 298, 14 A.L.R. 1045; Cline v. Frink Dairy Co., 274 U.S. 445 , 47 S.Ct. 681), then 'willfully' bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. 'Willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully'. It is true also of a statute that it cannot lift itself up by its bootstraps.

Certainly these considerations of vagueness imply unconstitutionality of the Act at least until 1909. For it was not until 1909, that the word 'willfully' was introduced. But the legislative history of that addition affords no evidence whatever that anybody thought that 'willfully' was added to save the statute from unconstitutionality. The Joint Committee of Congress on the Revision of Laws (which sponsored what became the Criminal Code) gives no such indication, for it did not propose 'willfully'; the reports in neither House of Congress shed any light on the subject, for the bill in neither House proposed that 'willfully' be added; no speech by any one in charge of the [325 U.S. 91, 155]   bill in either House sheds any light on the subject; the report of the Conference Committee, from which 'willfully' for the first time emerges, gives no explanation whatever; and the only reference we have is that to which the Court's opinion refers (43 Cong.Rec., p. 3599). And that is an unilluminating remark by Senator Daniel of Virginia, who had no responsibility for the measure and who made the remark in the course of an exchange with Senator Heyburn of Idaho, who was in charge of the measure and who complained of an alleged attitude on the part of Southern members to filibuster against the bill because of the retention of Reconstruction legislation.

In Omaechevarria v. Idaho, 246 U.S. 343 , 38 S.Ct. 323, the Court sustained an Idaho statute prohibiting any person having charge of sheep from allowing them to graze 'upon any range usually occupied by any cattle grower'. Rev.Codes Idaho, 6872. The statute was attacked under the Due Process Clause in that it failed to provide for the ascertainment of the boundaries of a 'range' or for determining what length of time is necessary to constitute a prior occupation a 'usual' one within the meaning of the Act. This attack upon the Idaho statute was rejected and for the following reasons: 'Men familiar with range conditions and desirous of observing th law will have little difficulty in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other (grazing) states. This [325 U.S. 91, 156]   statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court.' 246 U.S. at page 348, 38 S.Ct. at page 325.

In Hygrade Provision Co. v. Sherman, 266 U.S. 497 , 45 S.Ct. 141, New York punished the misrepresentation of meat as 'kosher' or as satisfying 'orthodox Hebrew religious requirements.' Here, too, the objection of indefiniteness was rejected by this Court. The objection bordered on the frivolous. In this case, too, the opinion of the Court, as in the way of opinions, softened the blow by saying that [325 U.S. 91, 157]   there was no danger of any one being convicted for not knowing what he was doing, for it required him to have consciousness that he was offering meat as 'kosher' meat when he knew very well that it was not.

Thus in both these cases this Court was saying that the criminal statutes under scrutiny, although very specific, did not expose any innocent person to the hazards of unfair conviction, because not merely did the legislation outlaw specifically defined conduct, but guilty knowledge of such defined criminality was also required. It thereby took the legislation outside the scope of United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301, in which the Court sustained the prosecution of one wholly innocent of knowledge of the act, commission of which the statute explicitly forbade.

The Government recognizes that 'this is the first case brought before this Court in which Section 20 has been applied [325 U.S. 91, 158]   to deprivations of rights secured by the Fourteenth Amendment.' It is not denied that the Government's contention would make a potential offender against this act of any State official who as a judge admitted a confession of crime, or who as judge of a State court of last resort sustained admission of a confession, which we should later hold constitutionally inadmissable, or who as a public service commissioner issued a regulatory order which we should later hold denied due process or who as a municipal officer stopped any conduct we later should hold to be constitutionally protected. The Due Process Clause of the Fourteenth Amendment has a content the scope of which this Court determines only as cases come here from time to time and then not without close division and reversals of position. Such a dubious construction of a criminal statute should not be made unless language compels.

That such a pliable instrument of prosecution is to be feared appears to be recognized by the Government. It urges three safeguards against abuse of the broad powers of prosecution for which it contends. (1) Congress it says will supervise the Department's policies and curb excesses by withdrawal of funds. It surely is casting an impossible burden upon Congress to expect it to police the propriety of prosecutions by the Department of Justice. Nor would such detailed oversight by Congress make for the effective administration of the criminal law. (2) The Government further urges that since prosecutions must be brought in the district where the crime was committed the judge and jurors of that locality can be depended upon to protect against federal interference with state law enforcement. Such a suggestion would, for practical purposes, transfer the functions of this Court, which adjudicates questions concerning the proper relationship between the federal and State governments, to jurors whose function is to resolve factual questions. Moreover, [325 U.S. 91, 159]   if federal and State prosecutions are subject to the same influences, it is difficult to see what need there is for taking the prosecution out of the hands of the State. After all, Georgia citizens sitting as a federal grand jury indicted and other Georgia citizens sitting as a federal trial jury convicted Screws and his associates; and it was a Georgia judge who charged more strongly against them than this Court thinks he should have.

We are told local authorities cannot be relied upon for courageous and prompt action, that often they have personal or political reasons for refusing to prosecute. If it be significantly true that crimes against local law cannot be locally prosecuted, it is an ominous sign indeed. In any event, the cure is a re-invigoration of State responsibility. It is not an undue incursion of remote federal [325 U.S. 91, 161]   authority into local duties with consequent debilitation of local responsibility.

[ Footnote 1 ] A demurrer to the indictment alleging among other things that the matters charged did not constitute an offense against the United States and did not come within the purview of 20 was overruled. At the end of the government's case petitioners' motion for a directed verdict on the grounds of the insufficiency of the evidence was denied.

[ Footnote 2 ] Moreover, federal as well as state officials would run afoul of the Act since it speaks of 'any law, statute, ordinance, regulation, or custom.' Comparable uncertainties will exist in the application of the due process clause of the Fifth Amendment.

[ Footnote 3 ] See Cong. Globe, 41st Cong., 2d Sess., pp. 3807, 3808, 3881. Flack, The Adoption of the Fourteenth Amendment (1908) pp. 19-54, 219, 223, 227; Hague v. C.I.O., 307 U.S. 496, 510 , 59 S.Ct. 954, 961.

[ Footnote 4 ] See United States v. Classic, 313 U.S. 299, 327 , 61 S.Ct. 1031, 1043, note 10.

[ Footnote 5 ] 'That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.'

[ Footnote 6 ] 'That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being alien, or by reason of his color or ace, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.'

[ Footnote 7 ] Its sponsor, Senator Stewart, stated that 'It extends the operation of the civil rights bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States.' Cong. Globe, 41st Cong., 2d Sess., p. 1536.

[ Footnote 8 ] That section provided in part: 'That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.'

[ Footnote 9 ] Sec. 5 thereof provides: 'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'

[ Footnote 10 ] The petitioners may be guilty of manslaughter or murder under Georgia law and at the same time liable for the federal offense proscribed by 20. The instances where 'an act denounced as a crime by both national and state sovereignties' may be punished by each without violation of the double jeopardy provision of the Fifth Amendment are common. United States v. Lanza, 260 U.S. 377, 382 , 43 S.Ct. 141, 143; Hebert v. Louisiana, 272 U.S. 312 , 47 S.Ct. 103, 48 A.L.R. 1102.

[ Footnote 11 ] Cong. Globe, 39th Cong., 1st Sess., p. 1759.

[ Footnote 12 ] Cong. Globe, 41st Cong., 2d Sess., p. 3663.

[ Footnote 1 ] The evidence was conflicting whether the warrant was made out and issued before, or after, the arrest and killing, and if issued beforehand, whether it was valid. The Court of Appeals noted there was evidence 'that the alleged warrant of arrest was prepared by the sheriff and was a spurious afterthought' (140 F.2d at page 665), but assumed in the petitioner's favor that a valid warrant had been issued. The dissenting opinion said the victim's shotgun was taken from his home 'not in a search of his person but apparently without lawful warrant.' 140 F.2d at page 667.

[ Footnote 2 ] The crucial dispute of fact was over whether the defendants had used more force than was necessary to restrain the prisoner. The 'overwhelming weight of the testimony' (140 F.2d at page 665) was that they used not only all force required to subdue him (if it is assumed he resisted), but continued to beat him for fifteen to thirty minutes after he was knocked to the ground.

[ Footnote 3 ] Cf. Part II infra.

[ Footnote 4 ] The dissenting judge in the Court of Appeals thought the local offense was not 'wilful murder, but rather that it was involuntary manslaughter in the commission of an unlawful act.' 140 F.2d at page 666.

[ Footnote 5 ] It does not appear that the state has taken any steps toward prosecution for violation of its law.

[ Footnote 6 ] Cf. notes 7 and 10. And see Neal v. Delaware, 103 U.S. 370 , 397; Civil Rights Cases, 109 U.S. 3 , 15-18, 3 S.Ct. 18, 24-27; Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 233 , 234 S., 17 S. Ct. 581, 583, 584; Raymond v. Chicago Union Traction Co., 207 U.S. 20 , 35-37, 28 S.Ct. 7, 12, 13, 12 Ann.Cas. 757; Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 288 , 289 S., 33 S.Ct. 312, 315; Cuyahoga River Power Co. v. Akron, 240 U.S. 462 , 36 S.Ct. 402; Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 , 46 S.Ct. 331, 332; Hopkins v. Southern California Telephone Co., 275 U.S. 393, 398 , 48 S.Ct. 180, 181; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 245 , 246 S., 52 S.Ct. 133, 135, 136; Nixon v. Condon, 286 U.S. 73, 89 , 52 S.Ct. 484, 487, 88 A.L.R. 458; Mosher v. City of Phoenix, 287 U.S. 29 , 53 S.Ct. 67; Sterling v. Constantin, 287 U.S. 378, 393 , 53 S.Ct. 190, 193; Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340, 98 A.L.R. 406; State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343 , 59 S.Ct. 232, 233; Hague v. C.I.O ., 307 U.S. 496, 512 , 59 S.Ct. 954, 962; Cochran v. Kansas, 316 U.S. 255 , 62 S.Ct. 1068; Pyle v. Kansas, 317 U.S. 213 , 63 S.Ct. 177.

[ Footnote 7 ] 'The prohibitions of the Fourteenth Amendment are directed to the States .... It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. ... Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.' Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 , 347 S..

[ Footnote 8 ] Cf. Part III infra. 'Such enforcement (of the Fourteenth Amendment by Congress) is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact. This extent of the powers of the general government is overlooked, when it is said, as it has been in this case, that the act of March 1, 1875, (18 Stat., part 3, 336) interferes with State rights.' Ex parte Commonwealth of Virginia, 100 U.S. at page 346.

[ Footnote 9 ] Cf. Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 287 , 33 S.Ct. 312, 315.

[ Footnote 10 ] Compare Barney v. City of New York, 193 U.S. 430 , 24 S.Ct. 502, with Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 , 33 S.Ct. 312, the latter suggesting that the former, 'if it conflicted with the doctrine' of Raymond v. Chicago Union Traction Company, 207 U.S. 20 , 28 S.Ct. 7, 12 Ann.Cas. 757, and Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764, 'is now so distinguished or qualified as not to be here authoritative or even persuasive.' 227 U.S. at page 294, 33 S.Ct. at page 317. See also Snowden v. Hughes, 321 U.S. 1, 13 , 64 S.Ct. 397, 403; Isseks, Jurisdiction of the Lower Federal Courts to Enjoin Unauthorized Action of State Officials, 40 Harv.L.Rev. 969, 972.

[ Footnote 11 ] Petitioners' objections in law were stated most specifically in the demurrer to the indictment. These grounds also were incorporated in their motion for a directed verdict and their statement of grounds for appeal. The grounds for demurrer maintained that the facts alleged were not sufficient to constitute a federal offense, to fall within or violate the terms of any federal law or statute, or to confer jurisdiction upon the District or other federal court. One ground attacked the indictment for vagueness.

[ Footnote 12 ] Section 19 of the Criminal Code, 18 U.S.C. 51, 18 U.S.C.A. 51: 'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.' (Emphasis added.)

[ Footnote 13 ] Cf. note 32. President Johnson, vetoing another bill on July 16, 1866, stated that the penalties of the Civil Rights Act 'are denounced against the person who willfully violates the law.' Cong. Globe, 39th Cong ., 1st Sess., 3839.

[ Footnote 14 ] For the history of these changes, see the authorities cited in the opinion of Mr. Justice Douglas, particularly Flack, Adoption of the Fourteenth Amendment (1908).

[ Footnote 15 ] United States v. Rhodes, 27 Fed.Cas. pag 785, No. 16,151; United States v. Jackson, 26 Fed.Cas. page 563, No. 15,459; United States v. Buntin, C.C., 10 F. 730; cf. United States v. Stone, D.C., 188 F. 836, a prosecution under Section 37 of the Criminal Code for conspiracy to violate Section 20; cf. also Id., D.C., 197 F. 483; United States v. Horton, 26 Fed.Cas. page 375, No. 15,392. The constitutionality of the statute was sustained in the Rhodes case in 1866, and in the Jackson case in 1874. It was likewise sustained in Re Turner, 1867, 24 Fed.Cas. page 337, no. 14,247; Smith v. Moody, 1866, 26 Ind. 299.

[ Footnote 16 ] Cf. the authorities cited infra at note 25.

[ Footnote 17 ] Referring to Section 20, the Court said: 'The generality of the section made applicable as it is to deprivations of any constitutional right, does not obscure its meaning or impair its force within the scope of its application, which is restricted by its terms to deprivations which are willfully inflicted by those acting under color of any law, statute and the like.' 313 U.S. at page 328, 61 S.Ct. at page 1044.

Concerning Section 19, also involved, the Court pointed to the decisions in Ex parte Yarbrough, 110 U.S. 651 , 4 S.Ct. 152, and United States v. Mosley, 238 U.S. 383 , 35 S.Ct. 904, cf. note 22, and commented: '... the Court found no uncertainty or ambiguity in the statutory language, obviously devised to protect the citizen 'in the free exercise (or enjoyment) of any right or privilege secured to him by the Constitution', and concerned itself with the question whether the right to participate in choosing a representative is so secured. Such is our function here.' 313 U.S. at page 321, 61 S.Ct. at page 1040. The opinion stated further: 'The suggestion that 19 ... is not sufficiently specific to be deemed applicable to primary elections, will hardly bear examination. Section 19 speaks neither of elections nor of primaries. In unambiguous language it protects 'any right or privilege secured ... by the Constitution,' a phrase which ... extends to the right of the voter to have his vote counted ... as well as to numerous other constitutional rights which are wholly unrelated to the choice of a representative in Congress,' citing United States v. Waddell, 112 U.S. 76 , 5 S.Ct. 35; Logan v. United States, 144 U.S. 263 , 12 S.Ct. 617; In re Quarles, 158 U.S. 532 , 15 S.Ct. 959; Motes v. United States, 178 U.S. 458 , 20 S.Ct. 993; Guinn v. United States, 238 U.S. 347 , 35 S.Ct. 926, L.R.A. 1916A, 1124. Cf. note 18.

[ Footnote 18 ] The dissenting opinion did not urge that Sections 19 and 20 are wholly void for ambiguity, since it put to one side cases involving discrimination for race or color as 'plainly outlawed by the Fourteenth Amendment,' as to which it was said, 'Since the constitutional mandate is plain, there is no reason why 19 or 20 should not be applicable.' However it was thought 'no such unambiguous mandate' had been given by the constitutional provisions relevant in the Classic case. 313 U.S. at page 332, 61 S.Ct. at page 1046.

[ Footnote 19 ] Cf. note 18.

[ Footnote 20 ] Whether or not the two are coextensive in limitation of federal and state power, respectively, there is certainly a very broad correlation in coverage, and it hardly could be maintained that one is confined by more clear-cut boundaries than the other, although differences in meandering of the boundaries may exist.

[ Footnote 21 ] The Court's opinion in the Classic case treated this clause of Section 20, cf. note 12, as entirely distinct from the preceding clauses, stating that 'the qualification with respect to alienage, color and race, refers only to differences in punishment and not to deprivations of any rights or privileges secured by the Constitution,' (emphasis added) as was thought to be evidenced by the grammatical structure of the section and 'the necessities of the practical application of its provisions.' 313 U.S. 326 , 61 S.Ct. 1043.

[ Footnote 22 ] Ex parte Yarbrough, 1884, 110 U.S. 651 , 4 S.Ct. 152; United States v. Waddell, 1884, 112 U.S. 76 , 5 S.Ct. 35; Logan v. United States, 1882, 144 U.S. 263 , 12 S.Ct. 617; In re Quarles and Butler, 1895, 158 U.S. 532 , 15 S.Ct. 959; Motes v. United States, 1900, 178 U.S. 458 , 20 S.Ct. 993; United States v. Mosley, 1915, 238 U.S. 383 , 35 S.Ct. 904; United States v. Morris, D.C.1903, 125 F. 322; United States v. Lackey, D. C.1900, 99 F. 952, reversed on other grounds, 6 Cir., 107 F. 114, 53 L.R.A. 660, certiorari denied 181 U.S. 621 , 21 S.Ct. 925.

The cases holding that the Fourteenth Amendment and Section 19 do not apply to infractions of constitutional rights involving no state action recognize and often affirm the section's applicability to wrongful action by state officials which infringes them: United States v. Cruickshank, 1876, 92 U.S. 542 ; Hodges v. United States, 1906, 203 U.S. 1 , 27 S.Ct. 6; United States v. Powell, 1909, 212 U.S. 564 , 29 S. Ct. 690; see also, Id., C.C., 151 F. 648; Ex parte Riggins, C.C.1904, 134 F. 404, dismissed 199 U.S. 547 , 26 S.Ct. 147; United States v. Sanges, C.C.1891, 48 F. 78, writ of error dismissed 144 U.S. 310 , 12 S.Ct. 609; Powe v. United States, 5 Cir., 1940, 109 F.2d 147, certiorari denied, 309 U.S. 679 , 60 S.Ct. 717. See also United States v. Hall, 1871, 26 Fed.Cas. page 79, No. 15,282; United States v. Mall, 1871, 26 Fed.Cas. page 1147, No. 15,712.

[ Footnote 23 ] Cf. the authorities cited in notes 22 and 25; United States v. Saylor, 322 U.S. 385 , 64 S.Ct. 1101.

[ Footnote 24 ] Sections 19 and 37 clearly overlap in condemning conspiracies to violate constitutional rights. The latter, apparently has been more frequently used, at any rate recently, when civil rather than political rights are involved. It goes without saying that in these cases validity of the application of Section 37, charging conspiracy to violate Section 20, depends upon the latter's validity in application to infraction of the rights charged to have been infringed.

[ Footnote 25 ] Recent examples involving these and other rights are: Culp v. United States, 8 Cir., 131 F.2d 93; Catlette v. United States, 4 Cir., 132 F.2d 902; United States v. Sutherland, D.C., 37 F.Supp. 344; United States v. Trierweiler, D.C., 52 F.Supp. 4.

United States v. Buntin, C.C., 10 F. 730, involved alleged discrimination for race in denying the right to attend public school. In United States v. Chaplin, D.C., 54 F.Supp. 926, the court ruled that a state judge, acting in his judicial capacity, is immune to prosecution under Section 37 for violating Section 20. But cf. Ex parte Commonwealth of Virginia, 100 U.S. 339 .

[ Footnote 26 ] These have been the perennial objections, notwithstanding uniform rejection in cases involving interference with both political and civil rights. Cf. the authorities cited in notes 7, 10, 22 and 25.

[ Footnote 27 ] Compare United States v. Chaplin, D.C., 54 F.Supp. 926 (see note 25, supra), with Ex parte Commonwealth of Virginia, 100 U.S. 339 .

[ Footnote 28 ] Cf. United States v. Buntin, C.C., 10 F. 730. One is that the generality of the section's terms simply has not worked out to be a hazard of unconstitutional, or even serious, proportions. It has not proved a source of practical difficulty. In no other way can be explained the paucity of the objection's appearance in the wealth of others made. If experience is the life of the law, as has been said, this has been true pre-eminently in the application of Sections 19 and 20.

[ Footnote 29 ] Cf. authorities cited in notes 7, 10, 22 and 25.

[ Footnote 30 ] Cf. Part III.

[ Footnote 31 ] Compare the statutes upheld in Chaplinsky v. New Hampshire, 315 U.S. 568, 573 , 574 S., 62 S.Ct. 766, 770; Gorin v. United States, 312 U.S. 19 , 23-28, 61 S.Ct. 429, 432-434; State of Minnesota v. Probate Court, 309 U.S. 270, 274 , 60 S.Ct. 523, 526, 126 A.L.R. 530; Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 196 , 57 S.Ct. 139, 146, 106 A.L.R. 1476; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 18 , 52 S.Ct. 103, 107, 78 A.L.R. 826; Whitney v. California, 274 U.S. 357, 360 , 368 S., 369, 47 S.Ct. 641, 645, 646; Fox v. Washington, 236 U.S. 273, 277 , 278 S., 35 S.Ct. 383, 384; United States v. Keitel, 211 U.S. 370 , 393-395, 29 S.Ct. 123, 130, 131.

[ Footnote 32 ] I think all this would be implied if 'willfully' had not been added to Section 20 by amendment. The addition but reinforces the original purpose. Cf. note 13 supra. Congress in this legislation, hardly can be taken to have sought to punish merely negligent conduct or honest error of judgment by state officials. The aim was at grosser violations of basic rights and the supreme law. Sensible construction of the language, with other considerations, requires this view. The consistent course of the section's application supports it.

[ Footnote 33 ] See Flack, Adoption of the Fourteenth Amendment (1908) 22-38; Cong. Globe, 39th Cong., 1st Sess., 474-607, 1151 ff.

[ Footnote 34 ] Cf. note 8.

[ Footnote 1 ] Iowa-Des Moines Nat. Bank v. Bennett, supra, illustrates the situation where there can be no doubt that the action complained of was the action of a State. That case came here from a State court as the ultimate voice of State law authenticating the alleged illegal action as the law of the State. Cases of which Lane v. Wilson, 307 U.S. 268 , 59 S.Ct. 872, is an illustration are also to be differentiated. In that case election officials discriminated illegally against Negroes not in defiance of a State statute but under its authority.

Petitioner was convicted of a violation of what is now 18 U.S.C. 242. The Court of Appeals affirmed. 179 F.2d 656. This Court granted certiorari. 340 U.S. 850 . Affirmed, p. 104. [341 U.S. 97, 98]  

The facts are these: The Lindsley Lumber Co. suffered numerous thefts and hired petitioner, who operated a detective agency, to ascertain the identity of the thieves. Petitioner held a special police officer's card issued by the City of Miami, Florida, and had taken an oath and qualified as a special police officer. Petitioner and others over a period of three days took four men to a paint shack on the company's premises and used brutal methods to obtain a confession from each of them. A rubber hose, a pistol, a blunt instrument, a sash cord and other implements were used in the project. One man was forced to look at a bright light for fifteen minutes; when he was blinded, he was repeatedly hit with a rubber hose [341 U.S. 97, 99]   and a sash cord and finally knocked to the floor. Another was knocked from a chair and hit in the stomach again and again. He was put back in the chair and the procedure was repeated. One was backed against the wall and jammed in the chest with a club. Each was beaten, threatened, and unmercifully punished for several hours until he confessed. One Ford, a policeman, was sent by his superior to lend authority to the proceedings. And petitioner, who committed the assaults, went about flashing his badge.

The indictment charged among other things that petitioner acting under color of law used force to make each victim confess to his guilt and implicate others, and that the victims were denied the right to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the state. Petitioner was found guilty by a jury under instructions which conformed with the rulings of the Court in Screws v. United States, 325 U.S. 91 . The Court of Appeals affirmed. 179 F.2d 656. The case, which is a companion to No. 26, United States v. Williams, ante, p. 70, and No. 134, United States v. Williams, ante, p. 58, decided this day, is here on certiorari. 340 U.S. 850 .

We think it clear that petitioner was acting "under color" of law within the meaning of 20, or at least that the jury could properly so find. We interpreted this phrase of 20 in United States v. Classic, 313 U.S. 299, 326 , "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." And see Screws v. United States, supra, 107-111. It is common practice, as we noted in Labor Board v. Jones & Laughlin Co., 331 U.S. 416, 429 , for private guards or detectives to be vested with policemen's powers. We know from the record that that is the policy of Miami, Florida. Moreover, this was an investigation [341 U.S. 97, 100]   conducted under the aegis of the State, as evidenced by the fact that a regular police officer was detailed to attend it. We need go no further to conclude that the lower court, to whom we give deference on local law matters, see Gardner v. New Jersey, 329 U.S. 565, 583 , was correct in holding that petitioner was no mere interloper but had a semblance of policeman's power from Florida. There was, therefore, evidence that he acted under authority of Florida law; and the manner of his conduct of the interrogations makes clear that he was asserting the authority granted him and not acting in the role of a private person. In any event, the charge to the jury drew the line between official and unofficial conduct which we explored in Screws v. United States, supra, 111, and gave petitioner all of the protection which "color of" law as used in 20 offers.

Criminal statutes must have an ascertainable standard of guilt or they fall for vagueness. See United States v. Cohen Grocery Co., 255 U.S. 81 ; Winters v. New York, 333 U.S. 507 . Section 20, it is argued, lacks the necessary specificity when rights under the Due Process Clause of the Fourteenth Amendment are involved. We are pointed to the course of decisions by this Court under the Due Process Clause as proof of the vague and fluid standard for "rights, privileges, or immunities secured or protected by the Constitution" as used in 20. We are referred to decisions where we have been closely divided on whether state action violated due process. More specifically we are cited many instances where the Court has been conspicuously in disagreement on the illegal character [341 U.S. 97, 101]   of confessions under the Due Process Clause. If the Court cannot agree as to what confessions violate the Fourteenth Amendment, how can one who risks criminal prosecutions for his acts be sure of the standard? Thus it is sought to show that police officers such as petitioner walk on ground far too treacherous for criminal responsibility.

Many criminal statutes might be extended to circumstances so extreme as to make their application unconstitutional. Conversely, as we held in Screws v. United States, a close construction will often save an act from vagueness that is fatal. The present case is as good an illustration as any. It is as plain as a pikestaff that the present confessions would not be allowed in evidence whatever the school of thought concerning the scope and meaning of the Due Process Clause. This is the classic use of force to make a man testify against himself. The result is as plain as if the rack, the wheel, and the thumb screw - the ancient methods of securing evidence by torture (Brown v. Mississippi, 297 U.S. 278, 285 -286; Chambers v. Florida, 309 U.S. 227, 237 ) - were used to compel the confession. Some day the application of 20 to less obvious methods of coercion may be presented and doubts as to the adequacy of the standard of guilt may be presented. There may be a similar doubt when an officer is tried under 20 for beating a man to death. That was a doubt stirred in the Screws case; and it was the reason we held that the purpose must be plain, the deprivation of the constitutional right willful. But where police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court. Hence when officers wring confessions from the accused [341 U.S. 97, 102]   by force and violence, they violate some of the most fundamental, basic, and well-established constitutional rights which every citizen enjoys. Petitioner and his associates acted willfully and purposely; their aim was precisely to deny the protection that the Constitution affords. * It was an arrogant and brutal deprivation of rights which the Constitution specifically guarantees. Section 20 would be denied the high service for which it was designed if rights so palpably plain were denied its protection. Only casuistry could make vague and nebulous what our constitutional scheme makes so clear and specific.

The indictment charged that petitioners deprived designated persons of rights and privileges secured to them by the Fourteenth Amendment. These deprivations were defined in the indictment to include "illegal" assault and battery. But the meaning of these rights in the context of the indictment was plain, viz. immunity from the use [341 U.S. 97, 103]   of force and violence to obtain a confession. Thus count 2 of the indictment charges that the Fourteenth Amendment rights of one Purnell were violated in the following respects:

The trial judge in his charge to the jury summarized Count 2 as meaning that the defendants beat Purnell "for the purpose of forcing him to make a confession and for the purpose of imposing illegal summary punishment upon him." He further made clear that the defendants were "not here on trial for a violation of any law of the State of Florida for assault" nor "for assault under any laws of the United States." There cannot be the slightest doubt from the reading of the indictment and charge as a whole that the defendants were charged with and tried for one of the most brutal deprivations of constitutional rights that can be imagined. It therefore strains at technicalities to say that any issue of vagueness of 20 as construed and applied is present in the case. Our concern is to see that substantial justice is done, not to search the record for possible errors which will defeat the great purpose of Congress in enacting 20.

[ Footnote * ] The trial judge charged in part on this phase of the case: "The law denies to anyone acting under color of law, statute, ordinance, regulation or custom the right to try a person by ordeal; that is, for the officer himself to inflict such punishment upon the person as he thinks the person should receive. Now in determining whether this requisite of willful intent was present in this case as to these counts, you gentlemen are entitled to consider all the attendant circumstances; the malice, if any, of the defendants toward these men; the weapon used in the assault, if any; and the character and duration of the investigation, if any, of the assault, if any, and the time and manner in which it was carried out. All these facts and circumstances may be taken into consideration from the evidence that has been submitted for the purpose of determining whether the acts of the defendants were willful and for the deliberate and willful purpose of depriving these men of their Constitutional rights to be tried by a jury just like everyone else."

Experience in the effort to apply the doctrine of Screws v. United States, 325 U.S. 91 , leads MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON and MR. JUSTICE MINTON to dissent for the reasons set forth in dissent in that case. [341 U.S. 97, 105]  

Conspiracy to defraud the United States of taxes on distilled spirits is a "crime involving moral turpitude" within the meaning of 19 (a) of the Immigration Act of 1917, 8 U.S.C. 155 (a), which requires the deportation of any alien who is sentenced more than once to imprisonment for one year or more because of conviction in this country of any such crime. Pp. 223-232.

183 F.2d 768, reversed.

In a habeas corpus proceeding to challenge the validity of a deportation order, the District Court dismissed the petition. The Court of Appeals reversed. 183 F.2d 768. This Court granted certiorari. 340 U.S. 890 . Reversed, p. 232.

This case presents only one question: whether conspiracy to defraud the United States of taxes on distilled [341 U.S. 223, 224]   spirits is a "crime involving moral turpitude" within the meaning of 19 (a) of the Immigration Act of 1917. 1  

Respondent, a native and citizen of Italy, has lived continuously in the United States since he entered this country in 1921. 2 In 1937, respondent was indicted under 18 U.S.C. 88 3 for conspiring with seven other defendants to violate twelve sections of the Internal Revenue Code. The indictment specifically charged him with possessing whiskey and alcohol "with intent to sell it in fraud of law and evade the tax thereon." He was further accused of removing and concealing liquor "with intent to defraud the United States of the tax thereon." 4 After pleading guilty, respondent was sentenced to imprisonment in a federal penitentiary for a term of one year and one day.

Respondent served his sentence under this conviction, and was released from custody. Less than a year later, he returned to his former activities and in December 1939, he was indicted again with eight other defendants for violating the same federal statutes. He was charged with conspiring to "unlawfully, knowingly, and willfully [341 U.S. 223, 225]   defraud the United States of tax on distilled spirits." 5 After being tried and found guilty in 1941, he was sentenced to imprisonment for two years.

After continued hearings and consideration of the case by the Commissioner of Immigration and Naturalization and by the Board of Immigration Appeals, respondent was ordered to be deported in January 1946, on the ground that he had twice been convicted and sentenced to terms of one year or more of crimes involving moral turpitude. 7 Deportation was deferred from time to time [341 U.S. 223, 226]   at respondent's request until 1949, when the District Director of Immigration and Naturalization moved to execute the warrant of deportation.

Respondent then sought habeas corpus in the District Court, claiming that the deportation order was invalid because the crimes of which he had been convicted did not involve moral turpitude. The District Court held a hearing, and dismissed the petition. The Court of Appeals reversed the order of the District Court and ordered that the respondent be discharged. 183 F.2d 768 (1950). The Court of Appeals stated that "crimes involving moral turpitude," as those words were used in the Immigration Act, "were intended to include only crimes of violence, or crimes which are commonly thought of as involving baseness, vileness or depravity. Such a classification does not include the crime of evading the payment of tax on liquor, nor of conspiring to evade that tax." 183 F.2d at 772. We granted certiorari to review the decision, 340 U.S. 890 (1950), as conflicting with decisions of the courts of appeals in other circuits.

This Court has interpreted the provision of the statute before us "to authorize deportation only where an alien having committed a crime involving moral turpitude and having been convicted and sentenced, once again commits a crime of that nature and is convicted and sentenced for it." Fong Haw Tan v. Phelan, 333 U.S. 6, 9 -10 (1948). Respondent has on two separate occasions been convicted of the same crime, conspiracy to defraud the United States of taxes on distilled spirits. Therefore, our inquiry in this case is narrowed to determining whether this particular offense involves moral turpitude. Whether [341 U.S. 223, 227]   or not certain other offenses involve moral turpitude is irrelevant and beside the point.

The term "moral turpitude" has deep roots in the law. The presence of moral turpitude has been used as a test in a variety of situations, including legislation governing the disbarment of attorneys 8 and the revocation of medical licenses. 9 Moral turpitude also has found judicial employment as a criterion in disqualifying and impeaching witnesses, 10 in determining the measure of contribution between joint tort-feasors, 11 and in deciding whether certain language is slanderous. 12  

In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude. This has been true in a variety of situations [341 U.S. 223, 228]   involving fraudulent conduct: obtaining goods under fraudulent pretenses, Bermann v. Reimer, 123 F.2d 331 (1941); conspiracy to defraud by deceit and falsehood, Mercer v. Lence, 96 F.2d 122 (1938); forgery with intent to defraud, United States ex rel. Popoff v. Reimer, 79 F.2d 513 (1935); using the mails to defraud, Ponzi v. Ward, 7 F. Supp. 736 (1934); execution of chattel mortgage with intent to defraud, United States ex rel. Millard v. Tuttle, 46 F.2d 342 (1930); concealing assets in bankruptcy, United States ex rel. Medich v. Burmaster, 24 F.2d 57 (1928); issuing checks with intent to defraud, United States ex rel. Portada v. Day, 16 F.2d 328 (1926). In the state courts, crimes involving fraud have universally been held to involve moral turpitude. 13  

Moreover, there have been two other decisions by courts of appeals prior to the decision now under review on the question of whether the particular offense before us in this case involves moral turpitude within the meaning of 19 (a) of the Immigration Act. In United States ex rel. Berlandi v. Reimer, 113 F.2d 429 (1940), and Maita v. Haff, 116 F.2d 337 (1940), courts of appeals specifically decided that the crime of conspiracy to violate the internal revenue laws by possessing and concealing distilled spirits with intent to defraud the United States of taxes involves moral turpitude. Furthermore, in Guarneri v. Kessler, 98 F.{4)d 580 [341 U.S. 223, 229]   (1938), a court of appeals held that the crime of smuggling alcohol into the United States with intent to defraud the United States involves moral turpitude.

It is significant that the phrase has been part of the immigration laws for more than sixty years. 14 As discussed [341 U.S. 223, 230]   above, the phrase "crime involving moral turpitude" has also been used for many years as a criterion in a variety of other statutes. No case has been decided holding that the phrase is vague, nor are we able to find any trace of judicial expression which hints that the phrase is so meaningless as to be a deprivation of due process.

Furthermore, this Court has itself construed the phrase "crime involving moral turpitude." In United States ex rel. Volpe v. Smith, Director of Immigration, 289 U.S. 422 (1933), the Court interpreted the same section of the Immigration Statute now before us. There, an alien had been convicted of counterfeiting government obligations with intent to defraud, and one question of the case was whether the crime of counterfeiting involved moral turpitude. This question was raised by the parties and discussed in the briefs. The Court treated the question without hesitation, stating that the crime of counterfeiting obligations of the United States was "plainly a crime involving moral turpitude." 289 U.S. at 423. (Emphasis supplied.)

The essential purpose of the "void for vagueness" doctrine is to warn individuals of the criminal consequences of their conduct. Williams v. United States, 341 U.S. 97 , decided April 23, 1951; Screws v. United States, 325 U.S. 91, 103 -104 (1945). This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. Lanzetta v. New Jersey, 306 U.S. 451 (1939); United States v. Cohen Grocery Co., 255 U.S. 81 (1921). It should be emphasized that this statute does not declare certain conduct to be criminal. Its function is to apprise aliens of the consequences which follow after conviction and sentence of the requisite two crimes. [341 U.S. 223, 231]  

We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 280 U.S. 396, 399 (1930). Impossible standards of specificity are not required. 15 United States v. Petrillo, 332 U.S. 1 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured [341 U.S. 223, 232]   by common understanding and practices. Connally v. General Construction Co., 269 U.S. 385 (1926).

[ Footnote 1 ] 39 Stat. 889, as amended, 8 U.S.C. 155 (a).

[ Footnote 2 ] Less than three years after entering the United States, respondent was convicted for transporting liquor and sentenced to a term in the reformatory. In 1931, he was convicted and fined for transferring license plates.

[ Footnote 3 ] 35 Stat. 1096, now 18 U.S.C. 371:

[ Footnote 4 ] These charges were based upon 26 U.S.C. (1934 ed.) 1155 (f), 1440 and 1441.

[ Footnote 5 ] The record establishes that respondent was a large-scale violator engaged in a sizable business. The second indictment alone charged him with possessing 4,675 gallons of alcohol and an undetermined quantity of distilled spirits. At the rate of $2.25 a gallon then in effect, the tax on the alcohol alone would have been over $10,000.

[ Footnote 6 ] 39 Stat. 889, as amended, 8 U.S.C. 155 (a).

[ Footnote 7 ] Section 19 (a) further provides: ". . . The provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Attorney General that such alien shall not be deported in pursuance of this chapter . . . ." 39 [341 U.S. 223, 226]   Stat. 889, as amended, 8 U.S.C. 155 (a). The record does not indicate that respondent has been pardoned, nor that the sentencing judge recommended that he not be deported, nor that respondent requested that such recommendation be made.

[ Footnote 8 ] In re Kirby, 10 S. D. 322, 73 N. W. 92, 39 L. R. A. 856 (1897). Bartos v. United States District Court, 19 F.2d 722 (1927); see Bradway, Moral Turpitude as the Criterion of Offenses that Justify Disbarment, 24 Cal. L. Rev. 9-27.

[ Footnote 9 ] Fort v. Brinkley, 87 Ark. 400, 404, 112 S. W. 1084, 1085 (1908). "It seems clearly deducible from the above cited authorities that the words `moral turpitude' had a positive and fixed meaning at common law . . . ."

[ Footnote 10 ] 3 Wigmore, Evidence (3d ed.), 540; cases are collected at 40 A. L. R. 1049, and 71 A. L. R. 219.

[ Footnote 11 ] Fidelity & Cas. Co. v. Christenson, 183 Minn. 182, 236 N. W. 618 (1931).

[ Footnote 12 ] Baxter v. Mohr, 37 Misc. 833, 76 N. Y. S. 982 (1902).

[ Footnote 13 ] State decisions have held that the following crimes involve moral turpitude: passing a check with intent to defraud, Bancroft v. Board of Governors of Registered Dentists of Oklahoma, 202 Okla. 108, 210 P.2d 666 (1949); using the mails to defraud, Neibling v. Terry, 352 Mo. 396, 177 S. W. 2d 502 (1944), In re Comyns, 132 Wash. 391, 232 P. 269 (1925); obtaining money and property by false and fraudulent pretenses, In re Needham, 364 Ill. 65, 4 N. E. 2d 19 (1936); possessing counterfeit money with intent to defraud, Fort v. Brinkley, 87 Ark. 400, 112 S. W. 1084 (1908). One state court has specifically held that the wilful evasion of federal income taxes constitutes moral turpitude. Louisiana State Bar Assn. v. Steiner, 204 La. 1073, 16 So.2d 843 (1944).

[ Footnote 14 ] The term "moral turpitude" first appeared in the Act of March 3, 1891, 26 Stat. 1084, which directed the exclusion of "persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude." Similar language was reenacted in the Statutes of 1903 and 1907. 2, Act of March 3, 1903, 32 Stat. 1213; 2, Act of Feb. 20, 1907, 34 Stat. 898. It has been suggested that the fact that this phrase has been used in the Immigration Laws for over sixty years has no weight in upholding its constitutionality. Of course, the mere existence of a statute for over sixty years does not provide immunity from constitutional attack. We have recently held an equally ancient statute unconstitutional for vagueness. Winters v. New York, 333 U.S. 507 (1948). There, a statute, which employed vague terminology wholly lacking in common law background or interpretation, was aimed at limiting rights of free speech. Even in the Winters case, however, several dissenting members of this Court were of the view that the venerability of the statute was an element to be considered in deciding the question of vagueness.

[ Footnote 15 ] The phrase "crime involving moral turpitude" presents no greater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by the Court. The Sherman Act provides the most obvious example, "restraint of trade" as construed to mean "unreasonable or undue restraint of trade," Nash v. United States, 229 U.S. 373 (1913). Compare other statutory language which has survived attack under the vagueness doctrine in this Court: "in excess of the number of employees needed by such licensee to perform actual services," United States v. Petrillo, 332 U.S. 1 (1947); "any offensive, derisive or annoying word," Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); "connected with or related to the national defense," Gorin v. United States, 312 U.S. 19 (1941); "psychopathic personality," Minnesota v. Probate Court, 309 U.S. 270 (1940); "wilfully overvalues any security," Kay v. United States, 303 U.S. 1 (1938); "fair and open competition," Old Dearborn Co. v. Seagram Corp., 299 U.S. 183 (1936); "reasonable variations shall be permitted," United States v. Shreveport Grain & Elevator Co., 287 U.S. 77 (1932); "unreasonable waste of natural gas," Bandini Petroleum [341 U.S. 223, 232]   Co. v. Superior Court, 284 U.S. 8 (1931); "political purposes," United States v. Wurzbach, 280 U.S. 396 (1930); "range usually occupied by any cattle grower," Omaechevarria v. Idaho, 246 U.S. 343 (1918).

Respondent, because he is an alien, and because he has been twice convicted of crimes the Court holds involve "moral turpitude," is punished with a life sentence of banishment in addition to the punishment which a citizen would suffer for the identical acts. MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER and I cannot agree, because we believe the phrase "crime involving moral turpitude," as found in the Immigration Act, 1 has no sufficiently definite meaning to be a constitutional standard for deportation. [341 U.S. 223, 233]  

Respondent migrated to this country from his native Italy in 1921 at the age of seventeen. Here he has lived twenty-nine years, is married to an American citizen, and his son, citizen by birth, is now a university student. In May, 1938, he pleaded guilty to a charge of conspiracy to violate the Internal Revenue Code 2 and was sentenced to imprisonment for one year and one day. On June 6, 1941, he was convicted of a second violation and sentenced to imprisonment for two years. During the decade since, he has not been arrested or charged with any law violation. While still in prison, however, deportation proceedings were instituted against him, resulting in 1946, in a warrant for arrest and deportation.

By habeas corpus proceedings, De George challenged the deportation order upon the ground that his is not a crime "involving moral turpitude." The District Court thought it did and dismissed the writ. The Court of Appeals for the Seventh Circuit thought it did not and reversed. 3 There is a conflict among the circuits. 4  

Despite this notice, Congress did not see fit to state what meaning it attributes to the phrase "crime involving moral turpitude." It is not one which has settled significance from being words of art in the profession. If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity 6 and moral turpitude seems to mean little more than morally immoral. 7 The Government confesses that [341 U.S. 223, 235]   it is "a term that is not clearly defined," and says: "The various definitions of moral turpitude provide no exact test by which we can classify the specific offenses here involved."

It is proposed by respondent, with strong support in legislative history, that Congress had in mind only crimes of violence. 8 If the Court should adopt this constructions, the statute becomes sufficiently definite, and, of course, would not reach the crimes of the respondent.

The Government suggests seriousness of the crime as a test and says the statute is one by which it is "sought to reach the confirmed criminal, whose criminality has been revealed in two serious penal offenses." (Italics supplied.) But we cannot, and the Court does not, take seriousness [341 U.S. 223, 236]   as a test of turpitude. All offenses denounced by Congress, prosecuted by the Executive, and convicted by the courts, must be deemed in some degree "serious" or law enforcement would be a frivolous enterprise. However, use of qualifying words must mean that not all statutory offenses are subject to the taint of turpitude. The higher degrees of criminal gravity are commonly classified as felonies, the lower ones as misdemeanors. If the Act contemplated that repetition of any serious crime would be grounds for deportation, it would have been simple and intelligible to have mentioned felonies. But the language used indicates that there are felonies which are not included and perhaps that some misdemeanors are. We cannot see that seriousness affords any standard of guidance.

Respondent suggests here, and the Government has on other occasions taken the position, that the traditional distinction between crimes mala prohibita and those mala in se will afford a key for the inclusions and exclusions of this statute. 9 But we cannot overlook that what crimes [341 U.S. 223, 237]   belong in which category has been the subject of controversy for years. 10 This classification comes to us from common law, which in its early history freely blended religious conceptions of sin with legal conceptions of crime. This statute seems to revert to that practice.

Can we accept "the moral standards that prevail in contemporary society" as a sufficiently definite standard for the purposes of the Act? This is a large country and [341 U.S. 223, 238]   acts that are regarded as criminal in some states are lawful in others. We suspect that moral standards which prevail as to possession or sale of liquor that has evaded tax may not be uniform in all parts of the country, nor in all levels of "contemporary society." How should we ascertain the moral sentiments of masses of persons on any better basis than a guess? 11  

1. It is something less than accurate to imply that in any sense relevant to this issue this phrase has been "part of the immigration laws for more than sixty years." 12  

But, in any event, venerability of a vague phrase may be an argument for its validity when the passing years [341 U.S. 223, 239]   have by administration practice or judicial construction served to make it clear as a word of legal art. To be sure, the phrase in its present context has been on the statute books since 1917. It has never before been in issue before this Court. Reliance today on United States v. Smith, 289 U.S. 422 , is unwarranted. There the Court assumed without analysis or discussion a proposition not seriously relied on. There have, however, been something like fifty cases in lower courts which applied this phrase. No one can read this body of opinions and feel that its application represents a satisfying, rational process. If any consistent pattern of application or consensus of meaning could be distilled from judicial decision, neither the Government nor the Court spells it out. Irrationality is inherent in the task of translating the religious and ethical connotations of the phrase into legal decisions. The lower court cases seem to rest, as we feel this Court's decision does, upon the moral reactions of particular judges to particular offenses. What is striking about the opinions in these "moral turpitude" cases is the wearisome repetition of cliches attempting to define "moral turpitude," usually a quotation from Bouvier. But the guiding line seems to have no relation to the result reached. The chief impression from the cases is the caprice of the judgments. 13 How many aliens have [341 U.S. 223, 240]   been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.

2. The use of the phrase by state courts for various civil proceedings affords no teaching for federal courts. The Federal Government has no common-law crimes and the judges are not permitted to define crimes by decision, for they rest solely in statute. 14 Nor are we persuaded that the state courts have been able to divest the phrase of its inherent ambiguities and vagueness.

3. The Court concludes that fraud is "a contaminating component in any crime" and imports "moral turpitude." The fraud involved here is nonpayment of a tax. The alien possessed and apparently trafficked in liquor without paying the Government its tax. That, of course, is a fraud on the revenues. But those who deplore [341 U.S. 223, 241]   the traffic regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them. Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree. So far as this offense is concerned with whiskey, it is not particularly un-American, and we see no reason to strain to make the penalty for the same act so much more severe in the case of an alien "bootlegger" than it is in the case of a native "moonshiner." I have never discovered that disregard of the Nation's liquor taxes excluded a citizen from our best society and I see no reason why it should banish an alien from our worst.

We should not forget that criminality is one thing - a matter of law - and that morality, ethics and religious teachings are another. Their relations have puzzled the best of men. Assassination, for example, whose criminality no one doubts, has been the subject of serious debate as to its morality. 15 This does not make crime less criminal, [341 U.S. 223, 242]   but it shows on what treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case. We usually end up by condemning all that we personally disapprove and for no better reason than that we disapprove it. In fact, what better reason is there? Uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds.

A different question might be before us had Congress indicated that the determination by the Board of Immigration Appeals that a crime involves "moral turpitude" should be given the weight usually attributed to administrative determinations. But that is not the case, nor have the courts so interpreted the statute. In the fifty-odd cases examined, no weight was attached to the decision of that question by the Board, the court in each case making its own independent analysis and conclusion. Apparently, Congress expected the courts to determine the various crimes includable in this vague phrase. 16 We think that not a judicial function. [341 U.S. 223, 243]  

A resident alien is entitled to due process of law. 17 We have said that deportation is equivalent to banishment or exile. 18 Deportation proceedings technically are not criminal; but practically they are for they extend the criminal process of sentencing to include on the same convictions an additional punishment of deportation. If respondent were a citizen, his aggregate sentences of three years and a day would have been served long since and his punishment ended. But because of his alienage, he is about to begin a life sentence of exile from what has become home, of separation from his established means of livelihood for himself and his family of American citizens. This is a savage penalty and we believe due process of law requires standards for imposing it as definite and certain as those for conviction of crime.

Strangely enough, the Court does not even pay the tribute of a citation to its recent decision in Musser v. Utah, 333 U.S. 95 , where a majority joined in vacating and remanding a decision which had sustained convictions under a Utah statute which made criminal a conspiracy "to commit acts injurious to public morals." We said of that statute: "Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order." 333 U.S. at 97. For my part, I am unable to rationalize why "acts injurious to public morals" is vague if "moral turpitude" is not. And on remand, the Supreme Court of [341 U.S. 223, 244]   Utah said: "We are . . . unable to place a construction on these words which limits their meaning beyond their general meaning." State v. Musser, ___ Utah ___, ___, 223 P.2d 193, 194 (Oct. 20, 1950).

In Winters v. New York, 333 U.S. 507 , the Court directly struck down for indefiniteness a statute sixty years on the statute books of New York and indirectly like statutes long on the books of half the States of the Union. 19 The New York statute made a person guilty of a misdemeanor who in any way distributes "any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; . . . ." 333 U.S. at 508. That statute was certainly no more vague than the one before us now and had not caused even a fraction of the judicial conflict that "moral turpitude" has.

In Winters v. New York, supra, the Court rested heavily on Connally v. General Construction Co., 269 U.S. 385 , in which this Court found unconstitutional indefiniteness in a statute calling for "the current rate of per diem wages in the locality" where contractors were doing government work. (The sanction of the statute was a relatively small money fine, or a maximum of six months, though of course a corporate violator could only be subjected to the fine.) The test by which vagueness was to be determined according to the Connally case was that legislation uses terms "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . ." 269 U.S. at 391. It would seem to be difficult to find a more striking instance [341 U.S. 223, 245]   than we have here of such a phrase since it requires even judges to guess and permits them to differ.

[ Footnote 1 ] Section 19 (a) of the Immigration Act of February 5, 1917, 39 Stat. 889, as amended, 8 U.S.C. 155 (a).

[ Footnote 2 ] 53 Stat. 401, 26 U.S.C. 3321.

[ Footnote 3 ] 183 F.2d 768.

[ Footnote 4 ] United States ex rel. Berlandi v. Reimer, 113 F.2d 429 (C. A. 2d Cir.) and Maita v. Haff, 116 F.2d 337 (C. A. 9th Cir.) hold this crime involves moral turpitude. Cf. Guarneri v. Kessler, 98 F.2d 580 (C. A. 5th Cir.), cert. denied, 305 U.S. 648 .

[ Footnote 5 ] Hearings before House Committee on Immigration and Naturalization on H. R. 10384, 64th Cong., 1st Sess. 8.

[ Footnote 6 ] Black's Law Dictionary defines turpitude as: "[I]nherent baseness or vileness of principle or action; shameful wickedness; depravity." An example of its use alone to signify immorality may be taken from Macaulay, whose most bitter critics would admit he was a master of the English word. "[T]he artists corrupted the spectators, and the spectators the artists, till the turpitude of the drama became such as must astonish all who are not aware that extreme relaxation is the natural effect of extreme restraint." History of England, Vol. I (1849 ed.), p. 374.

[ Footnote 7 ] Bouvier's Law Dictionary, Rawles Third Revision, defines "moral turpitude" as "An act of baseness, vileness or depravity in the private [341 U.S. 223, 235]   and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

[ Footnote 8 ] "Mr. WOODS. . . . I would make provisions to get rid of an alien in this country who comes here and commits felonies and burglaries, holds you up on the streets, and commits crimes against our daughters, because we do not want that kind of alien here, and they have no right to be here. . . . The rule is that if we get a man in this country who has not become a citizen, who knocks down people in the street, who murders or who attempts to murder people, who burglarizes our houses with blackjack and revolver, who attacks our women in the city, those people should not be here. . . ." Hearings before House Committee on Immigration and Naturalization on H. R. 10384, 64th Cong., 1st Sess. 14. Mr. Woods was not an ordinary witness. As the then Police Commissioner of New York City, his testimony appears to have been most influential in this provision of the 1917 Act.

[ Footnote 9 ] In Volume II of Administrative Decisions under Immigration and Nationality Laws of the United States, p. 141, there is an administrative interpretation by the Department then having the administration of the Act. In an opinion on a deportation proceeding decided by the Board June 26, 1944, and approved by the Attorney General July 12, 1944, the statement was quoted with approval:

[ Footnote 10 ] Crimes mala in se, according to Blackstone, are offenses against "[t]hose rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, . . . the worship of God, the maintenance of children, and the like." They are "crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se (crimes in themselves), such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature." According to Blackstone, crimes mala prohibita "enjoin only positive duties, and forbid only such things as are not mala in se . . . without any intermixture of moral guilt." Illustrative of this type of crime are "exercising trades without serving an apprenticeship thereto, for not burying the dead in woollen, for not performing the statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin: the only obligation in conscience is to submit to the penalty, if levied." "[A]nd his conscience will be clear, which ever side of the alternative he thinks proper to embrace." Cooley's Blackstone, Vol. I (4th ed.), pp. [*]54, [*]58. Of this, J. W. C. Turner says: "Some of the weak points in this doctrine were detected by an early editor of Blackstone, and in modern times it is generally regarded as quite discredited." The Modern Approach to Criminal Law 221. And cf. United States v. Balint, 258 U.S. 250 .

[ Footnote 11 ] As Judge Learned Hand put it, in attempting to resolve a similar conflict: "Even though we could take a poll, it would not be enough merely to count heads, without any appraisal of the voters. A majority of the votes of those in prisons and brothels, for instance, ought scarcely to outweigh the votes of accredited churchgoers. Nor can we see any reason to suppose that the opinion of clergymen would be a more reliable estimate than our own." Schmidt v. United States, 177 F.2d 450, 451 (C. A. 2d Cir.).

[ Footnote 12 ] We are construing the Act of 1917 and not the earlier Immigration Acts, those of March 3, 1891, 26 Stat. 1084; March 3, 1903, 32 Stat. 1213; February 20, 1907, 34 Stat. 898. All of these prior statutes allowed deportation for conviction for every felony or crime, which meant for conviction of every crime involving a sentence of not less than a year. It then added another deportable category, to wit, misdemeanors involving moral turpitude. In addition to all crimes involving a sentence of a year or more, the earlier Acts carved out a small category of petty offenses, when they were of a kind [341 U.S. 223, 239]   "involving moral turpitude," i.e., offenses even though carrying a small sentence having a manifestation of intrinsic badness. But that creates a very different problem from requiring us to discriminate among all offenses, felonies and misdemeanors on the basis of intrinsic badness.

[ Footnote 13 ] How unguiding the guide "moral turpitude" is, in relation to the enforcement of the Act of 1917, can be shown by three pairs of cases:

(1) In Tillinghast v. Edmead, 31 F.2d 81, the First Circuit, over a pungent dissent, held that a conviction for petty larceny by an "ignorant colored girl" working as a domestic was an offense involving "moral turpitude." On the other hand, in United States v. Uhl, [341 U.S. 223, 240]   107 F.2d 399, the Second Circuit held that conviction for possession of a jimmy, with intent to use it in the commission of some crime, the jimmy being "adapted, designed and commonly used for the commission of the crimes of burglary and larceny" was not for an offense involving "moral turpitude."

[ Footnote 14 ] Viereck v. United States, 318 U.S. 236, 241 .

[ Footnote 15 ] John Stuart Mill, referring to the morality of assassination of political usurpers, passed by examination of the subject of Tyrannicide, as follows: "I shall content myself with saying that the subject [341 U.S. 223, 242]   has been at all times one of the open questions of morals; that the act of a private citizen in striking down a criminal, who, by raising himself above the law, has placed himself beyond the reach of legal punishment or control, has been accounted by whole nations, and by some of the best and wisest of men, not a crime, but an act of exalted virtue; and that, right or wrong, it is not of the nature of assassination, but of civil war." Mill, On Liberty and Considerations on Representative Government, p. 14, n. 1.

Butler, Hudibras, Vol. I (1772 ed.), 28.

[ Footnote 16 ] However, a statement by the Chairman of the Committee on Immigration and Naturalization may suggest another explanation: "My recollection is that the Supreme Court of the United States has [341 U.S. 223, 243]   determined what crimes are crimes involving moral turpitude under the Federal law, and if so, that would control, I should think." Hearings before House Committee on Immigration and Naturalization on H. R. 10384, 64th Cong., 1st Sess. 8.

[ Footnote 17 ] Wong Yang Sung v. McGrath, 339 U.S. 33 .

[ Footnote 18 ] Fong Haw Tan v. Phelan, 333 U.S. 6, 10 .

[ Footnote 19 ] The Court's reference to the dissent in the Winters case would seem to make questionable its present force as an authority. [341 U.S. 223, 246]