author: Mr. Chief Justice Burger

text:
    BULLOCK et al. v. CARTER et al.
    No. 70-128.
    Argued November 17, 1971
    Decided February 24, 1972

      BuRger, C. J., delivered the opinion of the Court, in which all Members joined except Powell and RehNQüist, JJ., who took no part in the consideration or decision of the case.

      John F. Morehead, Special Assistant Attorney General of Texas, and Pat Bailey, Assistant Attorney General, argued the cause for appellants. With them on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, J. C. Davis, William J. Craig, and W. O. Shultz II, Assistant Attorneys General, and Charles F. Herring.

      A. L. Crouch argued the cause for appellees Wisch-kaemper et al. With him on the brief was Eugene L. Smith for appellee Carter. Joseph A. Calamia argued the cause for appellees Pate et al. With him on the briefs was John L. Fashing.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

Under Texas law, a candidate must pay a filing fee as a condition to having his name placed on the ballot in a primary election. The constitutionality of the Texas filing-fee system is the subject of this appeal from the judgment of a three-judge District Court.

Appellee Pate met all qualifications to be a candidate in the May 2, 1970, Democratic primary for the office of County Commissioner of Precinct Four for El Paso County, except that he was unable to pay the $1,424.60 assessment required of candidates in that primary. Appellee Wischkaemper sought to be placed on the Democratic primary ballot as a candidate for County Judge in Tarrant County, but he was unable to pay the $6,300 assessment for candidacy for that office. Appel-lee Carter wished to be a Democratic candidate for Commissioner of the General Land Office; his application was not accompanied by the required $1,000 filing fee.

After being denied places on the Democratic primary ballots in their respective counties, these appellees instituted separate actions in the District Court challenging the validity of the Texas filing-fee system. Their actions were consolidated, and a three-judge District Court was convened pursuant to 28 U. S. C. §§ 2281 and 2284. Appellee Jenkins was permitted to intervene as a voter on his claimed desire to vote for Wischkaemper, and appellee Guzman and others were permitted to intervene as voters desiring to cast their ballots for Pate. On April 3, 1970, the District Court ordered that Wischkaemper and Pate be permitted to participate in the primary conducted on May 2, 1970, without prepayment of filing fees. Following a hearing on the merits, the three-judge court declared the Texas filing-fee scheme unconstitutional and enjoined its enforcement. 321 F. Supp. 1358 (ND Tex. 1970). A direct appeal was taken under 28 U. S. C. § 1253, and we noted probable jurisdiction. 403 U. S. 904.

Under the Texas statute, payment of the filing fee is an absolute prerequisite to a candidate’s participation in a primary election. There is no alternative procedure by which a potential candidate who is unable to pay the fee can get on the primary ballot by way of petitioning voters, and write-in votes are not permitted in primary elections for public office. Any person who is willing and able to pay the filing fee and who meets the basic eligibility requirements for holding the office sought can run in a primary.

Candidates for most district, county, and precinct offices must pay their filing fee to the county executive committee of the political party conducting the primary; the committee also determines the amount of the fee. The party committee must make an estimate of the total cost of the primary and apportion it among the various candidates “as in their judgment is just and equitable.” The committee’s judgment is to be guided by “the importance, emolument, and term of office for which the nomination is to be made.” In counties with populations of one million or more, candidates for offices of two-year terms can be assessed up to 10% of their aggregate annual salary, and candidates for offices of four-year terms can be assessed up to 15% of their aggregate annual salary. In smaller counties there are no such percentage limitations.

The record shows that the fees required of the candidates in this case are far from exceptional in their magnitude. The size of the filing fees is plainly a natural consequence of a statutory system that places the burden of financing primary elections on candidates rather than on the governmental unit, and that imposes a particularly heavy burden on candidates for local office. The filing fees required of candidates seeking nomination for state offices and offices involving statewide primaries are more closely regulated by statute and tend to be appreciably smaller. The filing fees for candidates for State Representative range from $150 to $600, depending on the population of the county from which nomination is sought. Candidates for State Senator are subject to a maximum assessment of $1,000. Candidates for nominations requiring statewide primaries, including candidates for Governor and United States Senator, must pay a filing fee of $1,000 to the chairman of the state executive committee of the party conducting the primary. Candidates for the State Board of Education have a fixed filing fee of $50.

(1)

The filing-fee requirement is limited to party primary elections, but the mechanism of such elections is the creature of state legislative choice and hence is “state action” within the meaning of the Fourteenth Amendment. Gray v. Sanders, 372 U. S. 368 (1963); Nixon v. Herndon, 273 U. S. 536 (1927). Although we have emphasized on numerous occasions the breadth of power enjoyed by the States in determining voter qualifications and the manner of elections, this power must be exercised in a manner consistent with the Equal Protection Clause of the Fourteenth Amendment. See, e. g., Williams v. Rhodes, 393 U. S. 23 (1968); Evans v. Cornman, 398 U. S. 419 (1970); Carrington v. Rash, 380 U. S. 89 (1965). The question presented in this case is whether a state law that prevents potential candidates for public office from seeking the nomination of their party due to their inability to pay a portion of the cost of conducting the primary election is state action that unlawfully discriminates against the candidates so excluded or the voters who- wish to support them.

The threshold question to be resolved is whether the filing-fee system should be sustained if it can be shown to have some rational basis, or whether it must withstand a more rigid standard of review.

In Harper v. Virginia Board of Elections, 383 U. S. 663 (1966), the Court held that Virginia’s imposition of an annual poll tax not exceeding $1.50 on residents over the age of 21 was a denial of equal protection. Subjecting the Virginia poll tax to close scrutiny, the Court concluded that the placing of even a minimal price on the exercise of the right to vote constituted an invidious discrimination. The problem presented by candidate filing fees is not the same, of course, and we must determine whether the strict standard of review of the Harper case should be applied.

The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U. S. 802 (1969). Texas does not place a condition on the exercise of the right to vote, nor does it quantitatively dilute votes that have been cast. Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. Compare Jenness v. Fortson, 403 U. S. 431 (1971), with Williams v. Rhodes, 393 U. S. 23 (1968). In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.

Unlike a filing-fee requirement that most candidates could be expected to fulfill from their own resources or at least through modest contributions, the very size of the fees imposed under the Texas system gives it a patently exclusionary character. Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support. The effect of this exclusionary mechanism on voters is neither incidental nor remote. Not only are voters substantially limited in their choice of candidates, but also there is the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may be unable to pay the large costs required by the Texas system. To the extent that the system requires candidates to rely on contributions from voters in order to pay the assessments, a phenomenon that can hardly be rare in light of the size of the fees, it tends to deny some voters the opportunity to vote for a candidate of their choosing; at the same time it gives the affluent the power to place on the ballot their own names or the names of persons they favor. Appellants do not dispute that this is endemic to the system. This disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause, and there are doubtless some instances of candidates representing the views of voters of modest means who are able to pay the required fee. But we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.

■Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper, that the laws must be “closely scrutinized” and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.

(2)

• Appellants contend that the filing fees required by the challenged statutes are necessary both to regulate the ballot in primary elections and to provide a means for financing such elections.

The Court has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U. S., at 442; Williams v. Rhodes, 393 U. S., at 32. In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections. Although we have no way of gauging the number of candidates who might enter primaries in Texas if access to the ballot were unimpeded by the large filing fees in question here, we are bound to respect the legitimate objectives of the State in avoiding overcrowded ballots. Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. Jenness v. Fortson, 403 U. S., at 442.

There is no escape from the conclusion that the imposition of filing fees ranging as high as $8,900 tends to limit the number of candidates entering the primaries. However, even under conventional standards of review, a State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation. Morey v. Doud, 354 U. S. 457, 465 (1957); Smith v. Cahoon, 283 U. S. 553, 567 (1931). To say that the filing fee requirement tends to limit the ballot to the more serious candidates is not enough. There may well be some rational relationship between a candidate’s willingness to pay a filing fee and the seriousness with which he takes his candidacy, but the candidates in this case affirmatively alleged that they were unable, not simply unwilling, to pay the assessed fees, and there was no contrary evidence. It is uncontested that the filing fees exclude legitimate as well as frivolous candidates. And even assuming that every person paying the large fees required by Texas law takes his own candidacy seriously, that does not make him a “serious candidate” in the popular sense. If the Texas fee requirement is intended to regulate the ballot by weeding out spurious candidates, it is extraordinarily ill-fitted to that goal; other means to protect those valid interests are available.

Instead of arguing for the reasonableness of the exclusion of some candidates, appellants rely on the fact that the filing-fee requirement is applicable only to party primaries, and point out that a candidate can gain a place on the ballot in the general election without payment of fees by submitting a proper application accompanied by a voter petition. Apart from the fact that the primary election may be more crucial than the general election in certain parts of Texas, we can hardly accept as reasonable an alternative that requires candidates and voters to abandon their party affiliations in order to avoid the burdens of the filing fees imposed by state law. Appellants have not demonstrated that their present filing-fee scheme is a necessary or reasonable tool for regulating the ballot.

In addition to the State’s purported interest in regulating the ballot, the filing fees serve to relieve the State treasury óf the cost of conducting the primary elections, and this is a legitimate state objective; in this limited sense it cannot be said that the fee system lacks a rational basis. But under the standard of review we consider applicable to this case, there must be a showing of necessity. Appellants strenuously urge that apportioning the cost among the candidates is the only feasible means for financing the primaries. They argue that if the State must finance the primaries, it will have to determine which political bodies are “parties” so as to be entitled to state sponsorship for their nominating process, and that this will result in new claims of discrimination. Appellants seem to overlook the fact that a similar distinction is presently embodied in Texas law since only those political parties whose gubernatorial candidate received 200,000 or more votes in the last preceding general election are required to conduct primary elections. Moreover, the Court has recently upheld the validity of a state law distinguishing between political parties on the basis of success in prior elections. Jenness v. Fortson, supra. We are not persuaded that Texas would be faced with an impossible task in distinguishing between political parties for the purpose of financing primaries.

We also reject the theory that since the candidates are availing themselves of the primary machinery, it is appropriate that they pay that share of the cost that they have occasioned. The force of this argument is diluted by the fact that candidates for offices requiring statewide primaries are generally assessed at a lower rate than candidates for local office, although the statewide primaries undoubtedly involve a greater expense. More importantly, the costs do not arise because candidates decide to enter a primary or because the parties decide to conduct one, but because the State has, as a matter of legislative choice, directed that party primaries be held. The State has presumably chosen this course more to benefit the voters than the candidates.

Appellants seem to place reliance on the self-evident fact that if the State must assume the cost, the voters, as taxpayers, will ultimately be burdened with the expense of the primaries. But it is far too late to make out a case that the party primary is such a lesser part of the democratic process that its cost must be shifted away from the taxpayers generally. The financial burden for general elections is carried by all taxpayers and appellants have not demonstrated a valid basis for distinguishing between these two legitimate costs of the democratic process. It seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all of the voters in an attempt to distribute the influence without regard to wealth. Viewing the myriad governmental functions supported from general revenues, it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern. Without making light of the State’s interest in husbanding its revenues, we fail to see such an element of necessity in the State’s present means of financing primaries as to justify the resulting incursion on the prerogatives of voters.

(3)

Since the State has failed to establish the requisite justification for this filing-fee system, we hold that it results in a denial of equal protection of the laws. It must be emphasized that nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees or licensing fees in other contexts. By requiring candidates to shoulder the costs of conducting primary elections through filing fees and by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system that utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote for candidates of their choice. These salient features of the Texas system are critical to our determination of constitutional invalidity.

Affirmed.

Mr. Justice Powell and Me. Justice Rehnquist took no part in the consideration or decision of this case.

       See Arts. 13.07a, 13.08, 13.08a, 13.15, and 13.16 of the Texas Election Code Ann. (Supp. 1970-1971).

       Carter also failed to have his application notarized and to have it accompanied by a statutory loyalty affidavit. Since appellees Pate and Wischkaemper were in all respects eligible to be candidates in the primary except for their failure to pay the filing fees, Carter’s participation in this appeal is superfluous and we need not decide whether the additional defects in his application deprive him of standing to attack the constitutionality of the filing-fee system.

       The order provided that their ultimate liability for the fees would depend on the outcome of this action. Preliminary relief was not granted to Carter because of his noncompliance with requisites for candidacy unrelated to the challenged filing fees. See n. 2, supra.

         The specific provisions held unconstitutional are those listed in n. 1, supra.

       Texas law does permit the names of independent candidates to appear on the official ballot in the general election if a proper application containing, a voter petition is submitted. The number of eligible voters required to sign the petition varies from 1% to 5% depending on the office sought. For district, county, and precinct offices, candidates must obtain the signatures of 5% of the eligible voters with a ceiling of 500 signatures. No person may sign the application of more than one person for the same office, and no person who has voted in a primary may sign the application of a candidate for an office for which a nomination was made at such primary. Art. 13.50, Tex. Election Code Ann. (1967).
      No fees are assessed against candidates in general elections.

       Art. 13.09(b), Tex. Election Code Ann. (Supp. 1970-1971). Write-in votes are permitted for the party offices of county chairman and precinct chairman in the general primary but not in the run-off primary. Ibid.

      Former Art. 13.08c (repealed, Acts 1967, 60th Leg., p. 1932, c. 723, § 77) permitted write-in votes in primary elections and provided that if a write-in candidate in the first primary either received a majority of the votes or was one of the two highest vote getters in a race in which no candidate received a majority of the votes, he could not be the party’s nominee in the general election or participate in the run-off primary, unless and until he paid the filing fee he would have been assessed had he originally sought a place on the primary ballot.

       Art. 13.08, Tex. Election Code Ann. (Supp. 1970-1971).

        Ibid.

       Art. 13.08a, Tex. Election Code Ann. (Supp. 1970-1971). This provision is applicable to Members of Congress.

       The $6,300 fee required of appellee Wischkaemper, for example, amounts to 32% of the $19,700 annual salary for County Judge in Tarrant County. Similarly, in the May 2, 1970, Democratic primary, candidates for five county offices in Ward County were assessed $6,250 for a filing fee; this fee represented 76.6% of the $8,160 annual salary for four of these offices; for the fifth office, that of County Commissioner, it represented 99.7% of the annual salary of $6,270.

       Assessments in excess of $1,000 appear to be common in many Texas counties, and assessments exceeding $5,000 are typical for certain offices in several counties. Filing fees for judgeships seem to run particularly high. Persons seeking to run in the May 2, 1970, Democratic primary for the office of District Judge in Tarrant County were required to pay $8,900 in order to have their names appear on the ballot.
      It should be noted, however, that amounts not needed to finance the primary are refunded to the candidates, and that in some counties refunds tend to run as high as 50% or more of the assessed filing fee.

       Arts. 13.08a, 13.16 subd. 2, Tex. Election Code Ann. (Supp. 1970-1971):

        Population of County Filing Fee

      less than 650,000. $150
      650,000 to 900,000. $600
      900,000 to 1,000,000. $300
      1,000,000 or more. $500
      It is not clear from the face of the statute why candidates from counties having populations between 650,000 and 900,000 must pay more than candidates from counties of larger sizes.
      An additional provision requires that candidates for State Representative from districts encompassing either eight or nine counties must pay $25 per county as a filing fee. Art. 13.08a, Tex. Election Code Ann. (Supp. 1970-1971).

       Art. 13.08a, Tex. Election Code Ann. (Supp. 1970-1971). There is a fixed-fee schedule if nomination is sought from a county with a population of 650,000 or more:

        Population of County Filing Fee

      650,000 to 900,000. $1,000
      900,000 to 1,000,000. $ 300
      1,000,000 or more. $1,000

      If part of such county is joined to two or more counties to constitute a senatorial district, the filing fee is fixed at $250.
      There is a ceiling on the filing fee if nomination is sought in a senatorial district encompassing counties with less than 650,000 in population. Art. 13.16 subd. 1, Tex. Election Code Ann. (Supp. 1970-1971):

        Population of County

        Filing Fee per County

      less than 5,000. $ 1
      5,000 to 10,000. $ 5
      10,000 to 40,000. $ 10
      40,000 to 125,000. $ 50
      125,000 to 200,000. $ 75
      200,000 to 650,000. $100
      Persons seeking nomination in a senatorial district constituting exactly two counties must pay a filing fee of $200.

       Art. 13.15, Tex. Election Code Ann. (Supp. 1970-1971). Candidates for Justice of the Court of Civil Appeals are also required to pay their filing fees to the chairman of the state committee, at the rate of 5% of one year’s salary. Ibid.

       Art. 13.08(4), Tex. Election Code Ann. (Supp. 1970-1971).

       Appellants ask the Court to reconsider the scope of Smith v. Allwright, 321 U. S. 649 (1944), in which the Court held that the action of the Democratic Party of Texas in excluding Negroes from participation in party primaries constituted “state action.” See also Terry v. Adams, 345 U. S. 461 (1953); cf. Nixon v. Condon, 286 U. S. 73 (1932). Appellants contend that not every aspect of a party primary election must be considered “state action” cognizable under the Fourteenth Amendment. But we are here concerned with the constitutionality of a state law rather than action by a political party and thus have no occasion to consider the scope of the holding in Smith v. Allwright, supra.

         The Texas Legislature has enacted a “contingent, temporary law” modifying the filing-fee requirement involved in this case. C. 11, H. B. 5, 62d Leg., 1st Called Sess. (1971). The new provisions allow persons unable to pay the filing fees to have their names placed on the ballot in primary elections if they submit a petition
      “signed by qualified voters eligible to vote for the office for which the candidate is running, equal in number to at least 10 percent of the entire vote cast for that party’s candidate for governor in the last preceding general election in the territory ... in which the candidate is running.” (Art. 13.08c (b).)
      The Act provides that it is to go into effect only if “(1) the Supreme Court of the United States does not dispose of the appeal [in this case] . . . before January 1, 1972; or (2) the Supreme Court of the United States affirms or refuses to review the judgment of the district court in the aforesaid case . . .” (§7(b)). The Act expires of its own force on December 31,1972, at which time the prior law goes back into effect.
      Although the Act has gone into effect due to the absence of decision by the Court on this appeal before January 1, 1972, the change in the law does not render this ease moot. The effect of the “contingent, temporary law” enacted by the Texas Legislature is to suspend enforcement of the strict filing-fee requirement during calendar year 1972. Since enforcement of the filing-fee requirement under the prior law was permanently enjoined by the court below, that injunction would continue to have force and effect after December 31, 1972. Furthermore, there is a continuing controversy with respect to ap-pellees’ obligation to pay the filing fees for participation in the Democratic primary held on May 2, 1970. The order of the District Court allowing appellees Pate and Wischkaemper to run in the primary without payment of fees stated that they would be liable for the fees if they did not ultimately prevail in this action. See n. 3, supra.

      We take note of the fact that in Johnston v. Luna, 338 F. Supp. 355 (ND Tex. 1972), the same three-judge court that issued the injunction appealed from in this case, declared the new law unconstitutional and enjoined its enforcement. Our attention is confined to the case before us, and we intimate no view on the merits of that controversy.

       See Dandridge v. Williams, 397 U. S. 471, 485 (1970); McGowan v. Maryland, 366 U. S. 420, 425-426 (1961).

       Cf. Turner v. Fouche, 396 U. S. 346, 362 (1970); Snowden v. Hughes, 321 U. S. 1 (1944).

       See Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); Kramer v. Union Free School Dist. No. 15, 395 U. S. 621 (1969) ; Cipriano v. City of Houma, 395 U. S. 701 (1969).

       See Reynolds v. Sims, 377 U. S. 533, 562 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964).

       The Texas Election Code provides that no person shall be nominated at a primary election for any office unless he receives a majority of the votes cast. In the event that no candidate receives a majority, a runoff election is held between the two candidates receiving the highest number of votes. Arts. 13.03, 13.07, Tex. Election Code Ann. (1967).

       Cf. Harper v. Virginia Board of Elections, 383 U. S., at 684-685 (Harlan, J., dissenting).

       Cf. Turner v. Fouche, 396 U. S., at 364.

       Appellants state that Texas requires only the signatures of 1% of the eligible voters. Although this is true for offices voted for statewide, the candidates for local offices in this case would have had to obtain the signatures of 5% of the eligible voters up to a maximum of 500 signatures. Moreover, only those persons not voting in the primary would have been eligible to sign a nominating petition. See n. 5, supra.

       See Carter v. Dies, 321 F. Supp. 1358, 1363 (ND Tex. 1970) (Thornberry, J., concurring).

       Cf. Harper v. Virginia Board of Elections, 383 U. S., at 674 (Black, J., dissenting).

       Art. 13.02, Tex. Election Code Ann. (1967).

       This would be a different case if the fees approximated the cost of processing a candidate’s application for a place on the ballot, a cost resulting from the candidate’s decision to enter a primary. The term filing fee has long been thought to cover the cost of filing, that is, the cost of placing a particular document on the public record.


source: Caselaw Access Project

license: Public Domain

text:
    GIGLIO v. UNITED STATES
    No. 70-29.
    Argued October 12, 1971
    Decided February 24, 1972
    Burger, C. J., delivered the opinion of the Court, in which all Members joined except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case.

      James M. La Rossa argued the cause and filed a brief for petitioner.

      Harry R. Sachse argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Beatrice Rosenberg.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

Petitioner was convicted of passing forged money orders and sentenced to five years’ imprisonment. While appeal was pending in the Court of Appeals, defense counsel discovered new evidence indicating that the Government had failed to disclose an alleged promise made to its key-witness that he would not be prosecuted if he testified for the Government. We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U. S. 264 (1959), and Brady v. Maryland, 373 U. S. 83 (1963).

The controversy in this case centers around the testimony of Robert Taliento, petitioner’s alleged cocon-spirator in the offense and the only witness linking petitioner with the crime. The Government’s evidence at trial showed that in June 1966 officials at the Manufacturers Hanover Trust Co. discovered that Taliento, as teller at the bank, had cashed several forged money orders. Upon questioning by FBI agents, he confessed supplying petitioner with one of the bank’s customer signature cards used by Giglio to forge $2,300 in money orders; Taliento then processed these money orders through the regular channels of the bank. Taliento related this story to the grand jury and petitioner was indicted; thereafter, he was named as a coconspirator with petitioner but was not indicted.

Trial commenced two years after indictment. Taliento testified, identifying petitioner as the instigator of the scheme. Defense counsel vigorously cross-examined, seeking to discredit his testimony by revealing possible agreements or arrangements for prosecutorial leniency:

“[Counsel.] Did anybody tell you at any time that if you implicated somebody else in this case that you yourself would not be prosecuted?
“[Taliento.] Nobody told me I wouldn’t be prosecuted.
“Q. They told you you might not be prosecuted?
“A. I believe I still could be prosecuted.
“Q. Were you ever arrested in this case or charged with anything in connection with these money orders that you testified to?
“A. Not at that particular time.
“Q. To this date, have you been charged with any crime?
“A. Not that I know of, unless they are still going to prosecute.”

In summation, the Government attorney stated, “[Tali-ento] received no promises that he would not be indicted.”

The issue now before the Court arose on petitioner’s motion for new trial based on newly discovered evidence. An affidavit filed by the Government as part of its opposition to a new trial confirms petitioner’s claim that a promise was made to Taliento by one assistant, DiPaola, that if he testified before the grand jury and at trial he would not be prosecuted. DiPaola presented the Government’s case to the grand jury but did not try the case in the District Court, and Golden, the assistant who took over the case for trial, filed an affidavit stating that DiPaola assured him before the trial that no promises of immunity had been made to Taliento. The United States Attorney, Hoey, filed an affidavit stating that he had personally consulted with Taliento and his attorney shortly before trial to emphasize that Taliento would definitely be prosecuted if he did not testify and that if he did testify he would be obliged to rely on the “good judgment and conscience of the Government” as to whether he would be prosecuted.

The District Court did not undertake to resolve the apparent conflict between the two Assistant United States Attorneys, DiPaola and Golden, but proceeded on the theory that even if a promise had been made by DiPaola it was not authorized and its disclosure to the jury would not have affected its verdict. We need not concern ourselves with the differing versions of the events as described by the two assistants in their affidavits. The heart of the matter is that one Assistant United States Attorney — the first one who dealt with Taliento— now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government.

As long ago as Mooney v. Holohan, 294 U. S. 103, 112 (1935), this Court made clear that deliberate deception of a. court and jurors by the presentation of known false evidence \s> incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U. S. 213 (1942). In Napue v. Illinois, 360 U. S. 264 (1959), we said, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id., at 269. Thereafter Brady v. Maryland, 373 U. S., at 87, held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.” See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function §3.11 (a). When the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra, at 269. We do not, however, automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . . .” United States v. Keogh, 391 F. 2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required under Brady, supra, at 87. A new trial is required if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury . . . .” Napue, supra, at 271.

In the circumstances shown by this record, neither DiPaola’s authority nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. See Restatement (Second) of Agency § 272. See also American Bar Association, Project on Standards for Criminal Justice, Discovery and Procedure Before Trial §2.1 (d). To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.

Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any-understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.

For these reasons, the due process requirements enunciated in Napue and the other cases cited earlier require a new trial, and the judgment of conviction is therefore reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

       During oral argument in this Court it was stated that DiPaola was on the staff of the United States Attorney when he made the affidavit in 1969 and remained on that staff until recently.

       DiPaola’s affidavit reads, in part, as follows :
      “It was agreed that if ROBERT EDWARD TALIENTO would testify before the Grand Jury as a witness for the Government, . . . he would not be . . . indicted. ... It was further agreed and understood that he, ROBERT EDWARD TALIENTO, would sign a Waiver of Immunity from prosecution before the Grand Jury, and that if he eventually testified as a witness for the Government at the trial of the defendant, JOHN GIGLIO, he would not be prosecuted.”

       Golden’s affidavit reads, in part, as follows:
      “Mr. DiPaola . . . advised that Mr. Taliento had not been granted immunity but that he had not indicted him because Robert Taliento was very young at the time of the alleged occurrence and obviously had been overreached by the defendant Giglio.”

       The Hoey affidavit, standing alone, contains at least an implication that the Government would reward the cooperation of the witness, and hence tends to confirm rather than refute the existence of some understanding for leniency.


author: Mr. Justice Douglas

text:
    PAPACHRISTOU et al. v. CITY OF JACKSONVILLE
    No. 70-5030.
    Argued December 8, 1971
    Decided February 24, 1972
    Douglas, J., delivered the opinion of the Court, in which all Members joined except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case.

      Samuel S. Jacobson argued the cause and filed briefs for petitioners.

      T. Edward Austin, Jr., argued the cause for respondent. With him on the brief were James C. Rinaman, Jr., and J. Edward Wall.

   Mr. Justice Douglas

delivered the opinion of the Court.

This case involves eight defendants who were convicted in a Florida municipal court of violating a Jacksonville, Florida, vagrancy ordinance. Their convictions were affirmed by the Florida Circuit Court in a consolidated appeal, and their petition for certiorari was denied by the District Court of Appeal on the authority of Johnson v. State, 202 So. 2d 852. The case is here on a petition for certiorari, which we granted. 403 U. S. 917. For reasons which will appear, we reverse.

At issue are five consolidated cases. Margaret Papa-christou, Betty Calloway, Eugene Eddie Melton, and Leonard Johnson were all arrested early on a Sunday morning, and charged with vagrancy — “prowling by auto.”

Jimmy Lee Smith and Milton Henry were charged with vagrancy — ‘ 'vagabonds. ’ ’

Henry Edward Heath and a eodefendant were arrested for vagrancy — “loitering” and “common thief.”

Thomas Owen Campbell was charged with vagrancy— “common thief.”

Hugh Brown was charged with vagrancy — “disorderly loitering on street” and “disorderly conduct — resisting arrest with violence.”

The facts are stipulated. Papachristou and Calloway are white females. Melton and Johnson are black males. Papachristou was enrolled in a job-training program sponsored by the State Employment Service at Florida Junior College in Jacksonville. Calloway was a typing and shorthand teacher at a state mental institution located near Jacksonville. She was the owner of the automobile in which the four defendants were arrested. Melton was a Vietnam war veteran who had been released from the Navy after nine months in a veterans’ hospital. On the date of his arrest he was a part-time computer helper while attending college as a full-time student in Jacksonville. Johnson was a tow-motor operator in a grocery chain warehouse and was a lifelong resident of Jacksonville.

At the time of their arrest the four of them were riding in Calloway’s car on the main thoroughfare in Jacksonville. They had left a restaurant owned by Johnson’s uncle where they had eaten and were on their way to a nightclub. The arresting officers denied that the racial mixture in the car played any part in the decision to make the arrest. The arrest, they said, was made because the defendants had stopped near a used-car lot which had been broken into several times. There was, however, no evidence of any breaking and entering on the night in question.

Of these four charged with “prowling by auto” none had been previously arrested except Papachristou who had once been convicted of a municipal offense.

Jimmy Lee Smith and Milton Henry (who is not a petitioner) were arrested between 9 and 10 a. m. on a weekday in downtown Jacksonville, while waiting for a friend who was to lend them a car so they could apply for a job at a produce company. Smith was a part-time produce worker and part-time organizer for a Negro political group. He had a common-law wife and three children supported by him and his wife. He had been arrested several times but convicted only once. Smith’s companion, Henry, was an 18-year-old high school student with no previous record of arrest.

This morning it was cold, and Smith had no jacket, so they went briefly into a dry cleaning shop to wait, but left when requested to do so. They thereafter walked back and forth two or three times over a two-block stretch looking for their friend. The store owners, who apparently were wary of Smith and his companion, summoned two police officers who searched the men and found neither had a weapon. But they were arrested because the officers said they had no identification and because the officers did not believe their story.

Heath and a codefendant were arrested for “loitering” and for “common thief.” Both were residents of Jacksonville, Heath having lived there all his life and being employed at an automobile body shop. Heath had previously been arrested but his codefendant had no arrest record. Heath and his companion were arrested when they drove up to a residence shared by Heath’s girl friend and some other girls. Some police officers were already there in the process of arresting another man. When Heath and his companion started backing out of the driveway, the officers signaled to them to stop and asked them to get out of the car, which they did. Thereupon they and the automobile were searched. Although no contraband or incriminating evidence was found, they were both arrested, Heath being charged with being a “common thief” because he was reputed to be a thief. The codefendant was charged with “loitering” because he was standing in the driveway, an act which the officers admitted was done only at their command.

Campbell was arrested as he reached his home very early one morning and was charged with “common thief.” He was stopped by officers because he was traveling at a high rate of speed, yet no speeding charge was placed against him.

Brown was arrested when he was observed leaving a downtown Jacksonville hotel by a police officer seated in a cruiser. The police testified he was reputed to be a thief, narcotics pusher, and generally opprobrious character. The officer called Brown over to the car, intending at that time to arrest him unless he had a good explanation for being on the street. Brown walked over to the police cruiser, as commanded, and the officer began to search him, apparently preparatory to placing him in the car. In the process of the search he came on two small packets which were later found to contain heroin. When the officer touched the pocket where the packets were, Brown began to resist. He was charged with “disorderly loitering on street” and “disorderly conduct — resisting arrest with violence.” While he was also charged with a narcotics violation, that charge was nolled.

Jacksonville’s ordinance and Florida’s statute were “derived from early English law,” Johnson v. State, 202 So. 2d, at 854, and employ “archaic language” in their definitions of vagrants. Id., at 855. The history is an oftentold tale. The breakup of feudal estates in England led to labor shortages which in turn resulted in the Statutes of Laborers, designed to stabilize the labor force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions. Later vagrancy laws became criminal aspects of the poor laws. The series of laws passed in England on the subject became increasingly severe. But “the theory of the Elizabethan poor laws no longer fits the facts,” Edwards v. California, 314 U. S. 160, 174. The conditions which spawned these laws may be gone, but the archaic classifications remain.

This ordinance is void for vagueness, both in the sense that it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U. S. 612, 617, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U. S. 88; Herndon v. Lowry, 301 U. S. 242.

Living under a rule of law entails various suppositions, one of which is that “[all persons] are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453.

Lametta is one of a well-recognized group of cases insisting that the law give fair notice of the offending conduct. See Connolly v. General Construction Co., 269 U. S. 385, 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1.

The poor among us, the minorities, the average householder are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net- by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce Motor Lines, Inc. v. United States, supra.

The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent. “Nightwalking” is one. Florida construes the ordinance not to make criminal one night’s wandering, Johnson v. State, 202 So. 2d, at 855, only the “habitual” wanderer or, as the ordinance describes it, “common night walkers.” We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result.

Luis Munoz-Marin, former Governor of Puerto Rico, commented once that “loafing” was a national virtue in his Commonwealth and that it should be encouraged. It is, however, a crime in Jacksonville.

“[Pjersons able to work but habitually living upon the earnings of their wives or minor children” — like habitually living “without visible means of support” — might implicate unemployed pillars of the community who have married rich wives.

“[P]ersons able to work but habitually living upon the earnings of their wives or minor children” may also embrace unemployed people out of the labor market, by reason of a recession or disemployed by reason of technological or so-called structural displacements.

Persons “wandering or strolling” from place to place have been extolled by Walt Whitman and Yachel Lindsay. The qualification “without any lawful purpose or object” may be a trap for innocent acts. Persons “neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served” would literally embrace many members of golf clubs and city clubs.

Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be “casing” a place for a holdup. Letting one’s wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.

They are embedded in Walt Whitman’s writings, especially in his “Song of the Open Road.” They are reflected, too, in the spirit of Vachel Lindsay’s “I Want to Go Wandering,” and by Henry D. Thoreau.

This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress: “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” United States v. Reese, 92 U. S. 214, 221.

While that was a federal case, the due process implications are equally applicable to the States and to this vagrancy ordinance. Here the net cast is large, not to give the courts the power to pick and choose but to increase the arsenal of the police. In Winters v. New York, 333 U. S. 507, the Court struck down a New York statute that made criminal the distribution of a magazine made up principally of items of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person. The infirmity the Court found was vagueness — the absence of “ascertainable standards of guilt” (id., at 515) in the sensitive First Amendment area. Mr. Justice Frankfurter dissented. But concerned as he, and many others, had been over the vagrancy laws, he added:

“Only a word needs to be said regarding Lanzetta v. New Jersey, 306 U. S. 451. The case involved a New Jersey statute of the type that seek to control ‘vagrancy.’ These statutes are in a class by themselves, in view of the familiar abuses to which they are put. . . . Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these ‘vagrancy statutes’ and laws against ‘gangs’ are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided.” Id., at 540.

Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those convicted may be punished for no more than vindicating affronts to police authority:

“The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancy-type proceedings is the procedural laxity which permits 'conviction’ for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution.” Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 631.

Another aspect of the ordinance’s vagueness appears when we focus, not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering “punishment by analogy.” Id., at 609. Such crimes, though long common in Russia, are not compatible with our constitutional system. We allow our police to make arrests only on “probable cause,” a Fourth and Fourteenth Amendment standard applicable to the States as well as to the Federal Government. Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system, even when the arrest is for past criminality. Future criminality, however, is the common justification for the presence of vagrancy statutes. See Foote, supra, at 625. Florida has, indeed, construed her vagrancy statute “as necessary regulations,” inter alia, “to deter vagabondage and prevent crimes.” Johnson v. State, 202 So. 2d 852; Smith v. State, 239 So. 2d 250, 251.

A direction by a legislature to the police to arrest all “suspicious” persons would not pass constitutional muster. A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest. People v. Moss, 309 N. Y. 429, 131 N. E. 2d 717. But as Chief Justice Hewart said in Frederick Dean, 18 Crim. App. 133, 134 (1924):

“It would be in the highest degree unfortunate if in any part of the country those who are responsible for setting in motion the criminal law should entertain, connive at or coquette with the idea that in a case where there is not enough evidence to charge the prisoner with an attempt to commit a crime, the prosecution may, nevertheless, on such insufficient evidence, succeed in obtaining and upholding a conviction under the Vagrancy Act, 1824.”

Those generally implicated by the imprecise terms of the ordinance — poor people, nonconformists, dissenters, idlers — may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” Thornhill v. Alabama, 310 U. S. 88, 97-98. It results in a regime in which the poor and the unpopular are permitted to “stand on a public sidewalk . . . only at the whim of any police officer.” Shuttlesworth v. Birmingham, 382 U. S. 87, 90. Under this ordinance,

“[I]f some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant.” Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 226 (1967).

A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards — that crime is being nipped in the bud — is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together. •

The Jacksonville ordinance cannot be squared with our constitutional standards and is plainly unconstitutional.

Reversed.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

       Jacksonville Ordinance Code § 26-57 provided at the time of these arrests and convictions as follows:
      “Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.”
      Class D offenses at the time of these arrests and convictions were punishable by 90 days’ imprisonment, $500 fine, or both. Jacksonville Ordinance Code § 1-8 (1965). The maximum punishment has since been reduced to 75 days or $450. §304.101 (1971). We are advised that that downward revision was made to avoid federal right-to-counsel decisions. The Fifth Circuit case extending right to counsel in misdemeanors where a fine of $500 or 90 days’ imprisonment could be imposed is Harvey v. Mississippi, 340 F. 2d 263 (1965).
      We are advised that at present the Jacksonville vagrancy ordinance is § 330.107 and identical with the earlier one except that “juggling” has been eliminated.

       Florida also has a vagrancy statute, Fla. Stat. §856.02 (1965), which reads quite closely on the Jacksonville ordinance. Jacksonville Ordinance Code § 27-43 makes the commission of any Florida misdemeanor a Class D offense against the City of Jacksonville. In 1971 Florida made minor amendments to its-statute. See Laws 1971, c. 71-132.
      Section 856.02 was declared unconstitutionally overbroad in Lazarus v. Faircloth, 301 F. Supp. 266. The court said: “All loitering, loafing, or idling on the streets and highways of a city, even though habitual, is not necessarily detrimental to the public welfare nor is it under all circumstances an interference with travel upon them. It may be and often is entirely innocuous. The statute draws no distinction between conduct that is calculated to harm and that which is essentially innocent.” Id., at 272, quoting Hawaii v. Anduha, 48 F. 2d 171, 172. See also Smith v. Florida, post, p. 172.
      The Florida disorderly conduct ordinance, covering “loitering about any hotel, block, barroom, dramshop, gambling house or disorderly house, or wandering about the streets either by night or by day without any known lawful means of support, or without being able to give a satisfactory account of themselves” has also been held void for “excessive broadness and vagueness” by the Florida Supreme Court, Headley v. Selkowitz, 171 So. 2d 368, 370.

       23 Edw. 3, c. 1 (1349); 25 Edw. 3, c. 1 (1350).

       See 3 J. Stephen, History of the Criminal Law of England 203-206, 266-275; 4 W. Blackstone, Commentaries *169.

        Ledwith v. Roberts, [1937] 1 K. B. 232, 271, gives the following summary:
      “The early Vagrancy Acts came into being under peculiar conditions utterly different to those of the present time. From the time of the Black Death in the middle of the 14th century till the middle of the 17th century, and indeed, although in diminishing degree, right down to the reform of the Poor Law in the first half of the 19th century, the roads of England were crowded with masterless men and their families, who had lost their former employment through a variety of causes, had no means of livelihood and had taken to a vagrant life. The main causes were the gradual decay of the feudal system under which the labouring classes had been anchored to the soil, the economic slackening of the legal compulsion to work for fixed wages, the break up of the monasteries in the reign of Henry VIII, and the consequent disappearance of the religious orders which had previously administered a kind of 'public assistance’ in the form of lodging, food and alms; and, lastly, the economic changes brought about by the Enclosure Acts. Some of these people were honest labourers who had fallen upon evil days, others were the ‘wild rogues,’ so common in Elizabethan times and literature, who had been born to a life of idleness and had no intention of following any other. It was they and their confederates who formed themselves into the notorious ‘brotherhood of beggars’ which flourished in the 16th and 17th centuries. They were a definite and serious menace to the community and it was chiefly against them and their kind that the harsher provisions of the vagrancy laws of the period were directed.”
      And see Sherry, Vagrants, Rogues and Vagabonds—Old Concepts in Need of Revision, 48 Calif. L. Rev. 557, 560-561 (1960); Note, The Vagrancy Concept Reconsidered: Problems and Abuses of Status Criminality, 37 N. Y. U. L. Rev. 102 (1962).

       In Edwards v. California, 314 U. S. 160, 177, in referring to City of New York v. Miln, 11 Pet. 102, 142, decided in 1837, we said: “Whatever may have been the notion then prevailing, we do not think that it will now be seriously contended that because a person is without employment and without funds he constitutes a ‘moral pestilence.’ Poverty and immorality are not synonymous.”

       And see Reich, Police Questioning of Law Abiding Citizens, 75 Yale L. J. 1161, 1172 (1966): “If I choose to take an evening walk to see if Andromeda has come up on schedule, I think I am entitled to look for the distant light of Almach and Mirach without finding myself staring into the blinding beam of a police flashlight.”

       “I have met with but one or two persons in the course of my life who understood the art of Walking, that is, of taking walks,— who had a genius, so to speak, for sauntering: which word is beautifully derived ‘from idle people who roved about the country, in the Middle Ages, and asked charity, under pretence of going á la Sainte Terre,’ to the Holy Land, till the children exclaimed, ‘There goes a Sainte Terrer,’ a Saunterer, a Holy-Lander. They who never go to the Holy Land in their walks, as they pretend, are indeed mere idlers and vagabonds; but they who do go there are saunterers in the good sense, such as I mean. Some, however, would derive the word from sons terre, without land or a home, which, therefore, in the good sense, will mean, having no particular home, but equally at home everywhere. For this is the secret of successful sauntering. He who sits still in a house all the time may be the greatest vagrant of all; but the saunterer, in the good sense, is no more vagrant than the meandering river, which is all the while sedulously seeking the shortest course to the sea. But I prefer the first, which, indeed, is the most probable derivation. For every walk is a sort of crusade, preached by some Peter the Hermit in us, to go forth and reconquer this Holy Land from the hands of the Infidels.” Excursions 251-252 (1893).

       For a discussion of the void-for-vagueness doctrine in the area of fundamental rights see Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev, 67, 104 et seq.; Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 224 et seq. (1967).

       See Edelman v. California, 344 U. S. 357, 362 (Black, J., dissenting) ; Hicks v. District of Columbia, 383 U. S. 252 (Douglas, J., dissenting); District of Columbia v. Hunt, 82 U. S. App. D. C. 159, 163 F. 2d 833 (Judge Stephens writing for a majority of the Court of Appeals); Judge Rudkin for the court in Hawaii v. Anduha, 48 F. 2d 171.
      The opposing views are numerous: Ex parte Branch, 234 Mo. 466, 137 S. W. 886; H. R. Rep. No. 1248, 77th Cong., 1st Sess., 2; Perkins, The Vagrancy Concept, 9 Hastings L. J. 237 (1958); People v. Craig, 152 Cal. 42, 91 P. 997.

       President Roosevelt, in vetoing a vagrancy law for the District of Columbia, said:
      “The bill contains many provisions that constitute an improvement over existing law. Unfortunately, however, there are two provisions in the bill that appear objectionable.
      “Section 1 of the bill contains a number of clauses defining a ‘vagrant.’ Clause 6 of this section would include within that category ‘any able-bodied person who lives in idleness upon the wages, earnings, or property of any person having no legal obligation to support him.’ This definition is so broadly and loosely drawn that in many cases it would make a vagrant of an adult daughter or son of a well-to-do family who, though amply provided for and not guilty of any improper or unlawful conduct, has no occupation and is dependent upon parental support.
      “Under clause 9 of said section ‘any person leading an idle life . . . and not giving a good account of himself’ would incur guilt and liability to punishment unless he could prove, as required by section 2, that he has lawful means of support realized from a lawful occupation or source. What constitutes ‘leading an idle life’ and ‘not giving a good account of oneself’ is not indicated by the statute but is left to the determination in the first place of a police officer and eventually of a judge of the police court, subject to further review in proper cases. While this phraseology may be suitable for general purposes as a definition of a vagrant, it does not conform with accepted standards of legislative practice as a definition of a criminal offense. I am not willing to agree that a person without lawful means of support, temporarily or otherwise, should be subject to the risk of arrest and punishment under provisions as indefinite and uncertain in their meaning and application as those employed in this clause.
      “It would hardly be a satisfactory answer to say that the sound judgment and decisions of the police and prosecuting officers must be trusted to invoke the law only in proper cases. The law itself should be so drawn as not to make it applicable to cases which obviously should not be comprised within its terms.” H. R. Doc. No. 392, 77th Cong., 1st Sess.

       Thus, “prowling by auto,” which formed the basis for the vagrancy arrests and convictions of four of the petitioners herein, is not even listed in the ordinance as a crime. But see Hanks v. State, 195 So. 2d 49, 51, in which the Florida District Court of Appeal construed “wandering or strolling from place to place” as including travel by automobile.

       J. Hazard, The Soviet Legal System 133 (1962):
      “The 1922 code was a step in the direction of precision in definition of crime, but it was not a complete departure from the concept of punishment in accordance with the dictates of the social consciousness of the judge. Laying hold of an old tsarist code provision that had been in effect from 1864 to 1903 known by the term ‘analogy,’ the Soviet draftsmen inserted an article permitting a judge to consider the social danger of an individual even when he had committed no act defined as a crime in the specialized part of the code. He was to be guided by analogizing the dangerous act to some act defined as crime, but at the outset the analogies were not always apparent, as when a husband was executed for the sadistic murder of a wife, followed by dissection of her torso and shipment in a trunk to a remote railway station, the court arguing that the crime was analogous to banditry. At the time of this decision the code permitted the death penalty for banditry but not for murder without political motives or very serious social consequences.”
      “On the traditionally important subject of criminal law, Algeria is rejecting the flexibility introduced in the Soviet criminal code by the ‘analogy’ principle, as have the East-Central European and black African states.” Hazard, The Residue of Marxist Influence in Algeria, 9 Colum. J. of Transnat’l L. 194, 224 (1970).

         Johnson v. United States, 333 U. S. 10, 15-17.

        Whiteley v. Warden, 401 U. S. 560.

       On arrests for investigation, see Secret Detention by the Chicago Police, A Report by the American Civil Liberties Union (1959). The table below contains nationwide data on arrests for “vagrancy” and for “suspicion” in the three-year period 1968-1970.


text:
    SMITH et al. v. FLORIDA
    No. 70-5055.
    Argued December 8, 1971
    Decided February 24, 1972
    Douglas, J., delivered the opinion of the Court, in which all Justices joined, except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case.

      Phillip A. Hubbart argued the cause and filed briefs for petitioners.

      Nelson E. Bailey, Assistant Attorney General of Florida, argued the cause for respondent pro hac vice. With him on the brief was Robert L. Shevin, Attorney General.
   Mr. Justice Douglas

delivered the opinion of the Court.

Florida’s vagrancy statute includes in the term “vagrants,” who can be criminally charged and convicted, “persons wandering or strolling around from place to place without any lawful purpose or object.” The defendants were so charged and pleaded not guilty, waived trial by jury, and were tried by a judge, who denied a motion to dismiss. The Florida Supreme Court affirmed, two judges dissenting. 239 So. 2d 250. The case is here on a petition for a writ of certiorari which we granted. 403 U. S. 917.

We have this day decided Papachristou v. City of Jacksonville, ante, p. 156. We therefore vacate and remand the judgment in the instant case for reconsideration in light of Papachristou.

So ordered.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

       Fla. Stat. §856.02 (1965). See Papachristou v. City of Jacksonville, decided this day, ante, at 157 n. 2.

       § 856.02.